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On 30 October 2018 the Constitutional Court of the Republic of Belarus made the decision “On Legal Regulation of the Use and Protection of the Image of an Individual in Civil Legislation” (reporting judge – Valentina Podgrusha)

The proceedings were initiated by the Constitutional Court in accordance with Articles 158.1 and 158.4 of the Law of the Republic of Belarus “On Constitutional Proceedings” on the basis of applications submitted by the Belarusian National Bar Association and the public council attached to the Ministry of Internal Affairs of the Republic of Belarus. The applicants believe that there is legal uncertainty in the provisions of the Civil Code of the Republic of Belarus related to the guarantee of the right of an individual to protection against unlawful interference with his 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. The use of the image of an individual without the consent of the person depicted is interference with his private life and violation of the right to privacy.
The public council attached to 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 in the line of duty, by eliminating uncertainty in the legal regulation of relevant relations.
When considering the case, the Constitutional Court proceeded from the following.
According to the Constitution of the Republic of Belarus, everyone shall be entitled to protection of his personal non-property rights, such as freedom, inviolability and dignity, private life, honour (Articles 25.1, 28).
Nonmaterial values protected by the Constitution include the appearance of a person belonging to him from birth, which is not alienable or otherwise transferable, as well as the right to depict an individual based on it. As a self-sufficient personal nonmaterial value, the image of an individual represents his external (individual) appearance in an objective form, for example, in a work of fine art, in a photograph or in a video at a specific point in time.
In accordance with the Civil Code, relations connected with the exercise and protection of inalienable human rights and freedoms and other nonmaterial values (personal non-property relations with no connection to property) are regulated by civil law, since otherwise does not follow from the essence of these relations (Article 1.2). Therefore, civil legislation shall determine in what cases and in what way the use and protection of nonmaterial values, including the appearance of an individual and the right to depict an individual based on it, shall be exercised and protected.
According to Article 151.2 of the Civil Code, nonmaterial values shall be protected in accordance with civil law in the cases and under the procedure provided for by this legislation, as well as in those cases and limits in which the application of methods of protection of civil rights (Article 11 of the Civil Code) arises from the essence of the nonmaterial right affected and the nature of the consequences of this violation.
According to the Constitutional Court, the rules of civil legislation should not only establish ways to protect a particular image of an individual stored on physical media, but also determine the mode of use of the image of an individual by other persons.
Based on the foregoing, the Constitutional Court considers that the current legislative regulation has a legal shortcoming due to the absence in civil legislation of an adequate legal mechanism to ensure to everyone protection of his image, which could lead to violation of constitutional rights, freedoms and legitimate interests of individuals in the law-enforcement process.
In order to ensure the constitutional principle of the rule of law, protect everyone by civil law remedies from unlawful interference with privacy, eliminate legal uncertainty in the legal regulation of the use and protection of the image of an individual in civil law, the Constitutional Court found it necessary to make appropriate alterations to the Civil Code of the Republic of Belarus.
The Council of Ministers of the Republic of Belarus has been invited to prepare a draft law on making alterations to the Civil Code of the Republic of Belarus and to submit it under the established procedure to the House of Representatives of the National Assembly of the Republic of Belarus.
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