The Constitutional Court of the Republic of Belarus comprising the Presiding Officer – Chairman P.P. Miklashevich, Deputy Chairwoman N.A. Karpovich, judges T.S. Boiko, T.V. Voronovich, S.Y. Danilyuk, L.G. Kozyreva, V.V. Podgrusha, V.N. Ryabtsev, L.M. Ryabtsev, O.G. Sergeeva, A.G. Tikovenko, S.P. Chigrinov

in open court session considered the case “On Legal Regulation in Civil Law of the Use and Protection of One's Image”.

The court session was attended by:

Ms N.V. Guyvik, Chairperson of the Standing Commission on Law of the House of Representatives of the National Assembly of the Republic of Belarus ‒ the authorised representative of the House of Representatives of the National Assembly of the Republic of Belarus in the Constitutional Court;

the representatives:

of the Supreme Court of the Republic of Belarus ‒ Mr V.L. Kalinkovich, First Deputy Chairman of the Supreme Court of the Republic of Belarus;

of the Prosecutor General's Office of the Republic of Belarus – Mr A.K. Stuk, Deputy Prosecutor General of the Republic of Belarus;

of the Ministry of Internal Affairs of the Republic of Belarus – Mr N.A. Melchenko, Deputy Minister of Internal Affairs of the Republic of Belarus – Head of the Public Security Police;

of the Ministry of Justice of the Republic of Belarus ‒ Mr N.M. Starovoitov, Deputy Minister of Justice of the Republic of Belarus

of the Belarusian Republican Attorneys’ Bar Association – Mr V.I. Tchaitchits, Chairman of the Belarusian Republican Attorneys’ Bar Association.

The proceedings were initiated by the Constitutional Court on 1 October 2018 in accordance with Article 116.1 of the Constitution of the Republic of Belarus (hereinafter – the Constitution), Article 22.3.8 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Articles 158.1 and 158.3 of the Law of the Republic of Belarus “On the Constitutional Proceedings” on the basis of applications submitted by the Belarusian National Bar Association and the Public Council under the Ministry of Internal Affairs of the Republic of Belarus pointing to the legal uncertainty in the rules of the Civil Code of the Republic of Belarus related to safeguards provided by Articles 28 and 59 of the Constitution to individuals against unlawful interference with their private life.

The Belarusian National Bar Association notes that nowadays the distribution of images of individuals made by means of photography and video filming in the mass media and in the Internet in some cases involves violation of their rights and legitimate interests. According to the applicant, the use of the image of an individual without the consent of the person depicted constitutes interference with his private life and violation of the right to privacy. In this regard, the applicant believes that with respect to persons depicted by means of photography and video filming without their will or consent, their rights should be protected by eliminating legal uncertainty in the legislative regulation of relevant relations, taking into account the requirements of Articles 28 and 59 of the Constitution.

The Public Council under the Ministry of Internal Affairs of the Republic of Belarus in its application to the Constitutional Court pointed to the facts of unauthorised photographing and video filming of employees of bodies and divisions of the Ministry of Internal Affairs, military personnel of the internal troops of the Ministry of Internal Affairs when performing their official tasks with subsequent publication and distribution of relevant materials in the media and the Internet. This circumstance, in the opinion of the applicant, coupled with tendentious approaches to the publication of the picture may entail negative consequences, including irreparable damage to the image of the law enforcement system, the rights and legitimate interests of employees of the bodies and divisions of the Ministry of Internal Affairs. In this regard, the Public Council under the Ministry of Internal Affairs considers that it is necessary to ensure the right of individuals to protection against unlawful interference with their private life, including employees of the internal affairs bodies and military service personnel of the internal troops of the Ministry of Internal Affairs when performing their official tasks, by eliminating uncertainty in the legal regulation of relevant relations.

Having heard the reporting judge V.V. Podgrusha, the authorised representative of the House of Representatives of the National Assembly of the Republic of Belarus in the Constitutional Court, the representatives of the Supreme Court of the Republic of Belarus, the Prosecutor General's Office of the Republic of Belarus, the Ministry of Internal Affairs of the Republic of Belarus, the Ministry of Justice of the Republic of Belarus, the Belarusian National Bar Association, having analysed the provisions of the Constitution, the Civil Code of the Republic of Belarus (hereinafter – the CC) and other legislative acts of the Republic of Belarus, having examined the submitted documents and other case materials the Constitutional Court found the following.

1. In accordance with Article 39 of the Law “On the Constitutional Proceedings” the Constitutional Court sent requests to the Supreme Court, the General Prosecutor's Office, the Ministry of Internal Affairs, the Ministry of Justice, the National Centre of Legislation and Legal Research, the Belarusian National Bar Association and the Civil Law Department of the Faculty of Law of the Belarusian State University.

The Supreme Court notes that the CC does not contain direct rules regulating the protection of one's image. This circumstance does not exclude the possibility of legal protection in case of violation of such a right of an individual on the basis of the basic principles of civil law and the application of the analogy of law, but it makes this rather difficult. In view of the above, the Supreme Court considers that the introduction in the CC of rules concerning specifics of the protection of one's image is appropriate and justifiable, since the settlement of these relations will contribute to elimination of the existing legal uncertainty, effective protection of individuals’ rights from unlawful interference with their private life, ensuring a reasonable balance of public and private interests, and also comply with the provisions of international treaties and standards.

According to the refined position of the General Prosecutor's Office, there is a need to ensure the use and protection of one's image by effective civil and legal means, which justifies appropriate amendments to the CC.

The Ministry of Internal Affairs considers that the rules of the Law of the Republic of Belarus “On the Internal Affairs Bodies of the Republic of Belarus” and the Law of the Republic of Belarus “On Information, Informatisation and Protection of Information” concerning the procedure for obtaining, distributing (providing) information about private life and personal data of employees of Internal Affairs Bodies are of indistinct nature and make reference to other legislative acts, which do not regulate this procedure either; there is no practical mechanism for the protection of relevant civil rights, including through the implementation of the methods provided for in Article 11 of the CC. The Ministry believes that there is legal uncertainty in the legislation regarding the procedure for using one’s image in civil relations.

According to the Ministry of Justice, the regulation of relations aimed at ensuring the protection of one’s image is provided for in the draft Law of the Republic of Belarus “On Personal Data”. Taking this into account, the Ministry considers that it is inappropriate to include in the CC the rules regulating civil-law relations in the field of using one’s image.

The National Centre of Legislation and Legal Research reported that when drafting the Law of the Republic of Belarus “On Making Alterations to Certain Codes of the Republic of Belarus”, the issue of legal regulation of relations connected with the use of one’s image without consent of the person in the picture was explored, and that it was decided that it would not be appropriate to regulate these relations in the CC since the protection of one’s image may be ensured by other legislative acts, including the Law “On Personal Data”.

The Belarusian National Bar Association notes that in the era of total informatisation and computerisation, there is an increasing need to protect person’s intangible benefits. The issue of legal protection of one’s image has become of particular importance due to development of the Internet and posting of images of individuals without their consent in cyberspace. Based on this, an individual should have the right to protect information about his/her identity by means of civil law, however, the rules on civil-law protection of one’s image are not provided in the CC, since the individual’s right to protect the image is not textually fixed, despite the need for his legal recognition. The Belarusian National Bar Association believes that supplementing the CC with provisions on the protection of one’s image will significantly increase the level and effectiveness of legal protection and protection of personal non-property rights of individuals as intangible benefits.

According to the Civil Law Department of the Faculty of Law of the Belarusian State University, Article 151 of the CC, as containing general provisions on intangible benefits subject to civil-law protection, does not exclude the possibility of seeking judicial protection in case of violation of the right of an individual to image. The issue of the need to supplement the CC with provisions defining the features of the protection of one’s image, including the features of publication and further use of one’s image made by a photograph or a video recording or contained in a work of visual arts (other artistic works) and specific ways of protecting the rights and legitimate interests of the person in the picture, requires additional doctrinal work, taking into account the assessment of legal consequences.

2. According to the Constitution the individual, his rights, freedoms and guarantees to secure them are the supreme value and goal of the society and the State (Article 2.1); safeguarding the rights and freedoms of the citizens of the Republic of Belarus shall be the supreme goal of the State; the State shall guarantee the rights and freedoms of citizens of Belarus that are enshrined in the Constitution and the laws, and specified by the State's international obligations (Articles 21.1 and 21.3). The provisions of the Constitution guarantee everyone’s protection of his or her personal non-property rights such as personal liberty, inviolability and dignity, private life, honour and dignity (Articles 25.1 and 28).

The Constitutional Court notes that a person’s appearance, belonging to him or her since birth, as well as the right to his or her image, based on that appearance, are intangible benefits falling within the protective scope of the Constitution.

The above-mentioned constitutional rules correspond to the provisions of international legal acts.

Thus, Article 12 of the Universal Declaration of Human Rights stipulates that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 17.1 of the International Covenant on Civil and Political Rights provides, in particular, that no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, or to unlawful attacks on his or her honour and reputation. At the same time Article 2.2 establishes obligation of each State Party to the Covenant to undertake to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognised in the present Covenant.

The right to respect for private and family life is enshrined in Article 8 of the European Convention on Human Rights. As the European Court of Human Rights ruled, the notion of «private life» within the meaning of Article 8 ECHR is a broad concept which extends to a number of aspects relating to personal identity, such as a person’s name or image, and furthermore includes a person’s physical and psychological integrity; a person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers; and, the right to the protection of one’s image is thus one of the essential components of personal development and presupposes the right to control the use of that image, including the right to refuse publication thereof.

The above-mentioned provisions of the Constitution and international legal acts together with Article 59.1 of the Constitution, stipulating that the State shall take all measures at its disposal to create the domestic and international order necessary for the exercise in full of the rights and liberties of the citizens of the Republic of Belarus that are specified in the Constitution, require the State to ensure appropriate legal regulation for the full implementation of the constitutional rights and freedoms of individuals and their timely and effective protection, including the development and consolidation of a valid legal mechanism for the use and protection of one’s image.

3. The constitutional rules guaranteeing the rights and freedoms of the individual (Articles 2.1, 21.3, 25.1 and 28 of the Constitution) have been developed in the provisions of the CC (Article 1.2) which set out that the relations connected with the enjoyment and protection of inalienable rights and freedoms and other intangible benefits (personal non-property relations not connected with property relations) shall be governed by civil law, unless doing so would not follow from the nature of the relations.

Therefore, civil law determines the legal mechanisms for the implementation and protection of intangible benefits, including a person’s appearance as an intangible benefit and the right to his or her image.

The Constitutional Court further observed that a person’s appearance was by its nature one of the intangible benefits falling within the protective scope of the Constitution. Being a self-contained personal intangible benefit, the image of the individual represents his or her external (individual) shape, for example, in a work of visual arts, in a photograph or in a video recording at the material time.

Such an approach is consistent with Article 151 of the CC («Intangible Benefits»), which establishes that life, health, a person’s dignity, inviolability, honour and good name, business reputation, privacy, personal and family secrecy, the right to free movement, to choice of residence and domicile, the right to name, authorship, other personal non-property rights and intangible benefits, which belong to the individual since birth or have been granted by law, shall not be alienable. Intangible benefits shall be protected in accordance with civil law in the instances and under the procedure provided thereby, as well as in the instances and to the extent where the use of protective means (Article 11 of the CC) follows from the nature of the violated nonmaterial rights and specific consequences of violation.

As a personal non-property right and an intangible benefit, the right to one’s image should therefore be provided with lawful means for its enjoyment and protection. Where the said benefit is encroached on, including by publication and dissemination of a person’s image without his or her consent, a person may invoke lawful protective measures. The measures concerned may include, inter alia, those set out in Article 11.3, 11.6 and 11.10 of the CC.

The Constitutional Court drew attention to the fact that certain issues of the protection of one’s image had been regulated, along with the CC, by the provisions of other legislative acts.

Thus, according to the Law of the Republic of Belarus “On Advertising”, it is not allowed to use images of citizens of the Republic of Belarus in advertising without their consent or the consent of their legal representatives, unless otherwise provided by this Law or the President of the Republic of Belarus (Article 10.10).

Article 34.4 of the Law of the Republic of Belarus “On Mass Media” provides for the obligation of a media journalist to obtain the consent of individuals to conduct video recordings, filming and photography, except for their conducting in places open for mass visits, during public events, and also except for cases set in Article 40 of this Law, according to which the distribution in the media of materials prepared using video recording, filming and photography of an individual without his / her consent is allowed only if measures against possible identification of the person by unauthorized persons are taken, as well as provided that the distribution of these materials does not violate the constitutional rights and freedoms of the individual and is necessary to protect public interests, except in cases of distribution of such materials at the request of a criminal investigating body or a court in the framework of preliminary investigation or litigation.

In that way, the rules of those special laws are limited by their scope (subject-matter) and ensure only certain aspects of the protection of one’s picture or image.

The Constitutional Court found it appropriate that each particular image of the individual recorded on a material medium should be protected: the civil law rules should not merely establish the protective measures, but also provide for the use of one’s image by others.

In view of the above, the Constitutional Court declared that there is legal uncertainty in civil law as regards the relations connected with the appropriate use and protection of one’s image.

4. In the Message to the President and the Houses of the National Assembly on Constitutional Legality in the Republic of Belarus in 2017, the Constitutional Court, inter alia, noted that constitutionalisation of the law determines, among other things, elimination of gaps, collisions and legal uncertainty in current legislation in order to ensure and protect everyone’s constitutional rights and freedoms and drew attention of the legislator and other rule-making bodies to the prevention of the weakening of constitutional safeguards for human rights and freedoms due to legal gaps and other defects of legal regulation.

The Constitutional Court considered that the current legislative regulation has a legal defect caused by the absence in civil law of the appropriate legal mechanism providing for the use and protection of one’s image.

Considering that the right of everyone to privacy is a matter of personal non-property rights (Article 151.1 of the CC), the Constitutional Court states that the protection of one’s image has not been provided with an appropriate legal mechanism that would take into account the nature of that intangible benefit, and would accordingly lay down details of the protective measures.

In view of the interrelated provisions of Articles 2, 21 and 28 of the Constitution, the Constitutional Court deemed that in order to ensure the proper enjoyment of everyone’s constitutional right to the protection of one’s private (personal) life from unlawful interference, it is necessary to establish in the CC the specifics of lawful use and protection of one’s image defining the scope of exercise and limitation of the right to image.

In view of the foregoing, by virtue of Articles 116.1 and 116.7 of the Constitution of the Republic of Belarus, Articles 22.3.8 and 24 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Articles 74.2, 75, 77, 80, 84, 85.17 and 160 of the Law of the Republic of Belarus “On Constitutional Proceedings” the Constitutional Court of the Republic of Belarus

RULED:

 1. In order to ensure the constitutional principle of the rule of law, to protect everyone by civil law remedies from unlawful interference with his/her privacy, to eliminate legal uncertainty in the legal regulation of the use and protection of one’s image in civil law, to recognise the need to make appropriate alterations to the Civil Code of the Republic of Belarus.

2. To suggest to the Council of Ministers of the Republic of Belarus to prepare the relevant draft-law amending the Civil Code of the Republic of Belarus and to submit it to the House of Representatives of the National Assembly of the Republic of Belarus under the established procedure.

3. The present Decision shall come into force from the date of its adoption.

4. To publish the present Decision in accordance with the legislative acts.

Presiding Officer – Petr Miklashevich,

Chairman of the Constitutional Court

of the Republic of Belarus