Case

Susan and Robert sold a photograph of their four-year-old daughter Lily, running naked on the beach, to a sun cream manufacturer. The photograph appeared in several magazines as part of an advertisement for the products of that firm. Kevin scanned the photograph and put it on the internet, on a site called ‘naked.little.girl.com’. Can Lily claim damages from Kevin? Is the internet provider liable?

Discussions

Austria

Operative rules

Lily has a claim against Kevin for the forbearance of future publication of her picture on the internet, abatement, publication of the courts findings and for compensation, as well as for a preliminary injunction. In respect of the access and host provider, Lily cannot sue for damages but has a claim for injunction.

Descriptive formants

The right to image (§ 78 UrhG; see Case 7) is not just restricted to adults but also applies to children.

The consent of both Susan and Robert as Lily's parents refers only to the publication of the naked photograph in magazines as an advertisement for certain suncare products. There seems to be nothing sinister about this type of publication. However, advertising a naked four-year-old girl on a website called ‘naked.little.girl.com’ appears to have a more sinister connotation. As far as the parents' consent (on Lily's behalf) is concerned, they have only given their consent for the publication of the photograph in a certain medium (magazines).