What rules apply to video and audio recording? - interview Dr. Jakabos With Monika Németh

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June 2018 28. - 15:31, OBH-Sajto4

https://birosag.hu/media/aktualis/milyen-szabalyok-vonantkoznak-kep-es-ha...

 

The likeness belongs to the person's exclusive power of disposal, i.e. it can only be made public in the rarest of cases without the consent of the depicted person. Dr. Jakabosné Dr. Jakabos dissects the rights to the image, the illegal use and the consequences of the violation. with Monika Németh, the president of the civil panel of the Metropolitan Court. 

 

 

What rights does someone have regarding their likeness?

 

An important part of the human personality, one of its components is a person's external appearance, image and, at the same time, his voice. External appearance is one of the conditions and "tools" for distinguishing a person as a personality, as well as a tool for the expression of personality and the relationship between people.

 

External appearance does not actually mean physical reality, but its reflection in the consciousness of others, that is, the social manifestation of a person as an independent personality.

 

A likeness is a pictorial representation of a person's external appearance in some way. So, the likeness is used to express, identify, and individualize the person's personality, therefore the protection of the external appearance (image, sound) is also necessary as part of the protection of the person's personality.

 

Based on the above, it can be understood that the likeness belongs to the person's exclusive power of disposal. The main and general rule is therefore that it can only be made public based on the arrangement and consent of the depicted person. This means two things: on the one hand, everyone can make their own image public freely, the limitation of this is the public interest and the violation of the rights of others. On the other hand, this means that without the consent of the depicted person, no one can make the likeness public without special legal provisions. There is no formal condition for consent, it can be given orally, in writing, or even through suggestive behavior.

 

The legal protection for the disclosure of the image (including the audio recording) is independent and independent of how the recording was made. A separate permit is required not only for making the recording, but also for its publication. As a general rule, the use of the recording is limited to its purpose. Therefore, even a legally made recording cannot be duplicated, handed over to someone else, i.e. used differently from the original purpose, without separate consent.

 

 

In which main cases can someone's likeness be used without their consent?

 

The consent of the person concerned is not required for the recording and the use of the recorded recording in the case of mass recording and recording of public appearances.

 

Judicial practice formed the conceptual boundaries of public involvement, the Civil Code. does not provide a normative definition. The permission of the public figure is not required either to make the recording or to make it public, provided that the use is not abusive. Images of public figures participating in public events can be used. But not all manifestations of public figures are public appearances, so their private lives are still protected. If a public figure appears in public as a private person, for example attending a relative's funeral, recording may only be made with his consent. The likeness of the public figure can therefore only be used in connection with his public appearances and for his presentation without the consent of the person concerned.

 

Crowd shots show a large number of people, the depicted persons are not seen as individual persons, but as parts of the crowd. Practice has not established a rule for how many people a group can be considered a crowd, this must always be decided on the basis of the given image, if people are present as a multitude, as a crowd, when looking at the image, it is a question of crowd recording. Standing out from the crowd makes the likeness unique, so in this case, the consent of the depicted person is required for the creation and use of the likeness.

The publicity of a court hearing requires special consideration. The hearing is usually open to the public, unless the court orders a closed hearing in cases specified by law. However, the public nature of the trial does not mean that everyone at the trial is free to make recordings.

 

The detailed rules of the recordings that can be made during the trial are contained in the procedural laws, and in all cases it is the task of the presiding judge to ensure the protection of the personal rights of the persons participating in the trial. By now, the practice has also crystallized that, for example, the legal representatives of the police are not classified as public figures in the courtroom, even if, in certain cases, the police officer is also classified as a public figure.

 

Many other cases of the use of an image or audio recording without the consent of the person concerned are permitted by laws other than the Civil Code. The new Civil Code it does not, for example, talk about the free use of the image or audio recording of a person who has disappeared or who has committed a crime, which of course does not mean that the individual sectoral laws cannot continue to allow this.

 

A video recording made with a hidden camera can be used as a means of proof or evidence in criminal proceedings; it can be decided in a civil suit whether the recording violates someone's personal rights.

 

Unauthorized filming of activities in a neighboring residential building in order to prove a violation of law - even if it does not violate privacy rights - may constitute trespass. At the same time, the use of a video recording of trespassing behavior as evidence does not constitute abuse and does not violate the rights of a person.

 

Making or using an audio recording is not considered abuse if it is done in the public interest or in legitimate private interests in order to prove a directly threatening or already committed violation, provided that the making or use of the audio recording does not cause disproportionate harm compared to the violation to be proven.

 

 

What can a parent do if someone illegally uses their child's image?

 

In the event of a violation of personal rights, the Civil Code defines in detail what sanctions the aggrieved party can enforce - a judicial declaration that the violation has occurred, the cessation of the violation and prohibition from further violations, the provision of appropriate satisfaction - which the party is entitled to enforce before the court.

 

In order to protect personal rights, the aggrieved party and a minor with limited capacity to act, i.e. a minor who has already reached the age of 14, can act in person. A legal representative is entitled to act on behalf of a child under the age of 14. In other words, the parent of a child under the age of 14, as a legal representative, can assert all claims defined in the Civil Code in the case of a violation of personal rights against his child.

 

 

Based on practical experience, which violations of law are typical for others?

 

In recent times, violations of the law on social networking sites have been on the rise. In addition, the number of cases related to images published by the Internet and print media is also significant. In particular, public figures initiate a higher number of such lawsuits. Law violations against private individuals also occur.

 

In the past, many police officers and prison guards also litigated, but the court ruling made it clear that they can be legally recorded while on duty.

 

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What are the civil legal consequences of the violation?

 

Sanctions independent of blameworthiness may be requested. A person whose right to privacy is violated may, based on the fact of the violation - within the statute of limitations - in relation to the circumstances of the case claim:

 

a) the court finding that the violation has occurred;

b) the cessation of the violation and the prohibition of the violator from further violations;

c) that the infringer provides adequate compensation and ensures adequate publicity at his own expense;

d) the termination of the harmful situation, the restoration of the state prior to the violation of the law and the destruction of the thing produced by the violation of the law or its deprivation of its infringing nature;

e) that the infringer or his/her legal successor transfers the financial advantage achieved through the infringement to his/her benefit in accordance with the rules of unjust enrichment.

 

A person whose personal rights are violated can claim damages for the non-pecuniary damage caused to him. The rules of liability for damages must be applied to the conditions of the obligation to pay damages - in particular to the definition of the person liable for the damages and the method of rescue - with the fact that in order to be entitled to damages, it is not necessary to prove the occurrence of an additional disadvantage in addition to the fact of the violation.

 

The amount of compensation is determined by the court in a lump sum, taking into account the circumstances of the case - especially the gravity of the violation, its repeated nature, the level of blameworthiness, the impact of the violation on the victim and his environment.

 

Anyone who suffers damage as a result of a violation of their personal rights may demand compensation from the infringer in accordance with the rules of liability for unlawfully caused damage.