Advertising law: Advertising with heads
From a communications perspective, it was probably a total disaster when the Montreux Jazz Festival, due to a graphic designer’s blunder, advertised its childcare services using the image of a child who had been killed in France.
Although the child's parents immediately threatened to sue, according to the media, the specific case is not so bad from a legal point of view, but it shows that advertising with heads or people can generally be legally problematic. After all, everyone has a right to their appearance, their image, which only they can control; this generally includes celebrities, such as former Federal Councillor Metzler, who was once used for a daily newspaper's advertising campaign without being asked.
The so-called right to one's own image is a personal right under Art. 28 of the Swiss Civil Code. This right begins at birth and ends at death. The right to one's own image concerns not only the taking and publication of a portrait of a person, but of any part of the body, provided that the person can be recognized by anyone on the basis of this publication; e.g. also on the basis of a tattoo.
As the right to one's own image ends with death, images of the dead that were taken during their lifetime can generally be used freely for advertising purposes. This makes it difficult for the parents of the deceased child to take legal action against the Montreux Jazz Festival. At best, they may be able to invoke their own right to privacy. From a legal perspective, people like former Federal Councillor Metzler are so-called persons of contemporary history. Relative persons of contemporary history are associated with a specific event. In the case of former Federal Councillor Metzler, this is her time as a Federal Councillor. If this is always reported on, pictures of her from this time may always be published. Famous people, such as the Queen of England, achieve the status of an absolute person of contemporary history. Images of such persons may generally be published. But even such people are no longer "fair game" for paparazzi. In a case concerning Princess Caroline of Monaco, the ECHR Court ruled that persons of contemporary history - even absolute ones - also have privacy, even if they move around in public spaces, and severely restricted the taking and publication of such images. In the case of historical figures and celebrities, a distinction must also be made between the publication of images in the context of editorial articles and the use of images of celebrities in advertising. While the former is permitted within the aforementioned legal framework, advertising with celebrities is only permitted with their express consent. In general, images of people may only be used for advertising with their explicit consent.
A special case is people who can be seen randomly and not in focus in a photograph, e.g. in a street or on a square. From a legal point of view, these are so-called staffage, i.e. they belong to the corresponding space, so to speak. However, caution is also required here. Especially when people appear in a context that is unpleasant for them. The Federal Supreme Court has just confirmed this, albeit in a different context, in its Google Street View ruling. A person whose image rights have been infringed can take action against anyone responsible for the infringement under both civil and, in principle, criminal law. Among other things, the removal of the infringement, compensation for damages and, in serious cases, satisfaction can be demanded. As a result, entire advertising campaigns may have to be discontinued and scrapped. This can also result in claims for damages by clients against advertising agencies and graphic designers. When advertising with heads, special attention must therefore be paid to the personal rights of the people depicted. Advertising departments, advertising agencies and graphic designers must make sure that they have the appropriate rights for the publication in question.
Ueli GrüterLL.M., attorney at law, Grüter Schneider & Partner AG, Zurich/Lucerne, is a lecturer in communications law at the Lucerne University of Applied Sciences and Arts and co-editor of the book Kommunikationsrecht.ch. He comments on practical legal issues in advertising once a month in Werbewoche. Questions can be sent to the Werbewoche legal expert at [email protected].
