Sports image rights in Estonia.

• Author: Kosk, Ermo

1. Introduction

   The contemporary society worships celebrities like pop-stars, actors as well as professional athletes. Celebrities are usually taken as positive role models, whom people want to be or look like. The businesses have understood the ability of celebrities to affect the behaviour and consumption patterns of ordinary people, thus the use of images of well-known persons has become a popular marketing tool also in Estonia.

   The Estonian sportsmen and women have been used in various commercials advertising a variety of products and services beginning from domestic food products and beverages and ending with services of commercial banks and mobile network operators. The latest trend is to use sportsmen and women also in political advertising to gain popularity and success at elections.

   An athlete's marketable identity, which includes, inter alia, the name, nickname, likeness, portrait and other characteristic features of the athlete, is the object of sports image rights. Below is a brief overview of the possibilities of a person to protect his or her image rights and the unlawful use of his or her image by third parties under Estonian law.

2. Protection of image rights under the Estonian legislation

   Although the Estonian legislation is not very elaborated in regard to the protection of the image rights, it does provide some regulations. The most important principles are set forth in the Constitution of the Republic of Estonia (1).

   Section 19 of the Estonian constitution provides that everyone has the right to free self-realisation. Everyone shall honour and consider the rights and freedoms of others, and shall observe the law, in exercising his or her rights and freedoms and in fulfilling his or her duties. According to the legal literature the referred section of the constitution actually provides for the general personality rights, which comprise also the rights to one's image and name (2).

   The identity of the person is protected by section 26 of the constitution, according to which everyone has the right to the inviolability of private and family life. The identity of the person includes also the name and appearance of the person. (3) The constitution does not provide any exceptions or restrictions in respect of public figures, which means that the constitution provides uniform protection for the image rights of all people.

   The Law of Obligations Act (4) specifies that the violation of a personality right is not unlawful if the violation is justified considering other legal rights protected by law and the rights of third parties or public interests. In such case, unlawfulness is established based on the comparative assessment of different legal rights and interests protected by law.

3. Use of the image of an athlete in media channels

   The depiction of the image of a public figure in different media channels raises the conflict between public interest and image rights. Generally there is no problem if the person has given consent for using his or her image. The Personal Data Protection Act (5) provides that upon the making of audio or visual recordings at a public place intended for future disclosure, the consent of the person may be substituted by a notification to the person thereof in a manner which permits the person to understand the fact of the recording of the audio or visual images and to give the person an opportunity to prevent the recording of his or her person if he or she so wishes.

   However, if the person has not given consent to record any visual images of themself, an athlete as a public figure must still reckon that pursuant to law...