Image rights are an essential component of personality rights recognised by Swiss law. They guarantee every individual control over the dissemination of their image — photographs, videos, illustrations — and oppose any unauthorised exploitation. In Switzerland, this right rests principally on article 28 of the Civil Code (CC), supplemented since 1 September 2023 by the revised Federal Act on Data Protection (LPD), as well as on article 179quater of the Criminal Code (CP) for the most serious infringements.
Legal basis: article 28 CC
Article 28 CC constitutes the cornerstone of personality protection in Swiss private law. It provides that "anyone whose personality is unlawfully infringed may apply to court for protection against all persons involved". Image rights are a direct manifestation of this protection: they recognise each person's right to decide whether, how and in what context their image may be captured and disseminated.
An infringement is unlawful unless:
- the injured party has consented to the capture or dissemination of their image;
- an overriding private or public interest justifies the infringement;
- the law authorises the infringement.
These three justifying grounds are interpreted strictly: the burden of proving their existence rests on the person who disseminated the image.
The consent principle
Consent is the most frequent justifying ground in image rights cases. To be valid, it must meet several conditions:
- Free: no constraint or pressure must bear on the person giving consent;
- Informed: the person must know what use will be made of their image (medium, context, duration);
- Specific: general consent does not cover uses not envisaged at the time it was given;
- Revocable: consent may be withdrawn for future uses at any time, without the revocation affecting past uses that were lawfully consented to.
Consent may be express (contract, written authorisation) or tacit, but tacit consent must emerge unequivocally from the circumstances. Mere presence in a public space does not constitute consent to being photographed or to the photo being publicly disseminated.
Exceptions to the consent principle
Swiss law admits several situations where the dissemination of an image is lawful without prior consent, on the basis of an overriding interest:
Public figures in their public sphere
Public personalities (elected officials, senior executives, artists, renowned athletes) implicitly accept being photographed in the exercise of their functions or at public appearances. This tolerance is strictly limited to the public sphere of their activity: it does not extend to their private life, their family or their close relatives who have not themselves chosen media exposure.
Crowd scenes and public space
The capture and dissemination of images of crowds or scenes of daily life in public space may be lawful when individuals are not identifiable or appear only incidentally. However, once a person is individualised — by a zoom, a caption or a crop — their consent becomes in principle necessary.
The right to information and current affairs
Freedom of the press and the right to information (art. 17 and 16 Cst.) may justify the dissemination of images in the context of a report of general interest. The court then weighs the interests between the image rights of the person photographed and the legitimate public interest in information. The greater the public interest of the event, the greater the tolerance — provided the image is not used in a degrading manner or taken out of context.
Interaction with the revised LPD (in force since 1 September 2023)
Since 1 September 2023, the revised LPD applies in full. Whenever an image allows a natural person to be identified, it constitutes personal data within the meaning of art. 5 let. a LPD. Its processing — collection, publication, archiving, transmission — is subject to the following principles:
- Lawfulness (art. 6 para. 1 LPD): processing must be based on a legal basis, an overriding interest or the consent of the data subject;
- Purpose limitation (art. 6 para. 3 LPD): data must be processed for the purpose stated at the time of collection;
- Proportionality (art. 6 para. 2 LPD): only the data necessary for the purpose pursued may be processed;
- Accuracy (art. 6 para. 5 LPD): data must be accurate and, if necessary, kept up to date.
The revised LPD also strengthens the rights of data subjects:
- Right of access to data concerning them (art. 25 LPD);
- Right to rectification of inaccurate data (art. 32 LPD);
- Right to have unlawfully processed data deleted;
- Right to object to processing for commercial prospecting purposes (art. 30 para. 2 LPD).
The Federal Data Protection and Information Commissioner (FDPIC) is the supervisory authority responsible for ensuring compliance with the LPD. It now has enhanced investigative and decision-making powers.
Civil actions in the event of infringement: article 28a CC
Article 28a CC provides three types of civil actions available to a person whose image rights have been violated:
- Action for cessation: the injured party may demand the immediate cessation of the ongoing infringement (removal of the photo, withdrawal of the publication);
- Action for a declaration: if the infringement has ceased but the person retains an interest in having its unlawful nature declared, they may bring a declaratory action;
- Action for compensation: if the infringement caused loss (economic harm) or non-material damage, the injured party may claim damages (art. 41 CO) and compensation for non-material harm (art. 49 CO).
The person claiming compensation for non-material harm must demonstrate that the infringement was particularly serious in light of the circumstances. The court sets the compensation at its discretion, taking into account in particular the gravity of the infringement, its duration and its consequences.
Interim measures (art. 261 et seq. CPC)
In image rights cases, speed is often decisive: an image disseminated on the internet spreads within hours. The Code of Civil Procedure (CPC) offers the possibility of seeking urgent interim measures:
- The applicant must establish the credibility of the existence of a right to protect and an imminent threat;
- The court may order the immediate removal of the image, its blocking or a prohibition on dissemination;
- In cases of particular urgency, an order may be made without prior hearing of the opposing party (art. 265 CPC — super-provisional measures);
- Interim measures may also be sought against website hosts or social media platforms, which are required to comply with a Swiss court order.
Specific cases: summary table
| Situation | Consent required? | Remarks |
|---|---|---|
| Photo in a public place (street, square) | Depends on the use | Tolerated if the person is incidental; required if individualised or if the image is used for commercial purposes |
| Photo in a private place (home, office) | Yes, in principle | Enhanced protection of the private sphere; absence of consent presumed |
| Publication on social networks | Yes | Wide dissemination aggravates the infringement; removal may be required on the basis of art. 28a CC and the LPD |
| Deepfakes and AI-generated images | Yes | Treated as real images where they depict an identifiable person; protection under art. 28 CC and potentially art. 179quater CP |
| Commercial use of an image (advertising, packaging) | Yes, always | Consent must be express and explicitly cover commercial use; remuneration may be provided for |
| Press report on a matter of public interest | No, in principle | Limited to images necessary for the information; does not cover subsequent uses (sold archives, context manipulation) |
| Photo of a minor | Yes (legal representatives) | Consent must be given by holders of parental authority; the child's best interests prevail in all circumstances |
Criminal consequences: article 179quater CP
On the criminal side, article 179quater of the Criminal Code (CP) penalises the violation of a private or secret domain by means of an image-recording device. Anyone who, without the consent of the person concerned:
- films or photographs a person in a non-public situation;
- makes such images accessible to or disseminates them to third parties.
The offence is prosecuted on complaint. The prescribed penalty is a custodial sentence not exceeding three years or a monetary penalty. Attempted commission is punishable. Art. 179quater CP primarily targets infringements of the intimate sphere (bedroom, bathroom, changing room), but may apply to any situation in which the person had a legitimate expectation of not being observed.
Limitation periods
Civil actions based on art. 28a CC and claims for damages or non-material harm are time-barred pursuant to art. 60 CO:
- Three years from the day on which the injured party became aware of the infringement and the identity of its author;
- Ten years from the day on which the harmful act was committed, regardless of the date of knowledge.
In the event of a criminal offence, the civil action is time-barred at the earliest upon expiry of the criminal limitation period (art. 60 para. 2 CO). For continuing infringements — for example an image that has remained online for years — the limitation period begins to run from the cessation of the infringement.
Frequently asked questions about image rights in Switzerland
Can I publish a photo taken in the street?
Under Swiss law, a photo taken in a public space may in principle be published if the person photographed is not individualised or appears only incidentally in a crowd or news scene. However, if the person is clearly identifiable and the publication infringes their private sphere or dignity, they may invoke art. 28 CC to request its removal. The absence of explicit consent does not mean that publication is automatically lawful: everything depends on the context, the use made of the image and the infringement of the individual's personality.
Can an employer use my photo?
An employer's use of an employee's photo requires in principle the employee's consent (art. 28 CC and art. 6 LPD). This consent must be free, informed and express a genuine will. A general clause in the employment contract does not always suffice to cover uses not originally envisaged (e.g. publication on advertising materials). The employee may at any time revoke consent for future uses. If the employer uses the photo for purposes other than those initially agreed, the employee may request cessation of that use on the basis of art. 28a CC and, if applicable, claim damages.
How can I have a photo removed from a website?
The procedure is based on art. 28a para. 1 CC, which allows the injured party to demand that the infringement cease. In practice: send a written formal notice to the person who published the image or to the site operator, invoking the infringement of image rights and setting a deadline for removal. If the request is ignored, it is possible to file an application for interim measures before the civil court (art. 261 et seq. CPC) to obtain an urgent removal order. In the event of a serious infringement, a criminal complaint under art. 179quater CP (unauthorised recording of conversations or non-public situations) may be considered. The revised LPD also allows an approach to the Federal Data Protection and Information Commissioner (FDPIC).
Do public figures have image rights?
Yes. Public figures — politicians, artists, athletes — benefit from image rights protected by art. 28 CC, but with a reduced scope in their sphere of public activity. They implicitly accept being photographed and filmed in the exercise of their functions or at public appearances. However, this tolerance does not extend to their private life or that of their close relatives. Federal case law distinguishes the public sphere (subject to a lower degree of protection) from the private and secret sphere, which remains protected regardless of the person's notoriety.
What is the relationship between image rights and the LPD?
Image rights and the revised LPD (which entered into force on 1 September 2023) overlap when an image allows a natural person to be identified: the image then becomes personal data within the meaning of art. 5 let. a LPD. The processing of this data — collection, publication, storage — is subject to the principles of lawfulness, purpose limitation and proportionality (art. 6 LPD). Processing without a legal basis or consent simultaneously constitutes an infringement of image rights (art. 28 CC) and a violation of the LPD. The revised LPD further strengthens the rights of data subjects: right of access (art. 25 LPD), right of rectification and right to object to automated processing.