This work depicts
one or more identifiable persons. The use of depictions of living or
deceased persons may be restricted by laws regarding
personality rights. The extent of these restrictions depends on
jurisdiction. Personality rights restrictions apply independently of
copyright. Before using this content, please ensure that the intended use
does not infringe any personality rights under applicable laws. You are
solely responsible for ensuring that you do not infringe someone else's
personality rights.
Photographs of identifiable people
Image taken in a private place and requiring evidence of consent
(here, provided)
This article sets out some general guidelines to bear in mind when taking
pictures of identifiable people that are intended for uploading onto
Free-Photos.biz. The guidelines apply to photographs of others and do not apply to
obvious self-portraits. They also do not apply to photographs where the
subject is unidentifiable.
The consensus on Free-Photos.biz (subject to any
local law to the contrary) is that the subject's consent is not
usually needed for a straightforward photograph of an identifiable
individual taken in a public place, but is usually needed for such a
photograph taken in a private place. When required, evidence of consent
would usually consist of an affirmation from the uploader of the media. This
may be accomplished using the {{consent}}
template.
Consent of the subject (who is a non-public figure) is required even for
photographs taken in public places in some countries (see
list below).
Photographs taken in a public place
In the United States, consent is not
as a rule required to photograph people in public places. Hence, unless there
are specific local laws to the contrary, overriding legal concerns (e.g.,
defamation) or moral concerns (e.g., picture unfairly obtained),
Free-Photos.biz does not normally require that an identifiable subject of a
photograph taken in a public place has consented to the image being taken or
uploaded. This is so whether the image is of a famous personality or of an
unknown individual.
Photographs taken in a private place
Because of the expectation of privacy, the consent of the subject should
normally be sought before uploading any photograph featuring an identifiable
individual that has been taken in a private place, whether or not the subject is
named. Even in countries that have no law of privacy, there is a moral
obligation on us not to upload photographs which infringe the subject's
reasonable expectation of privacy.
What are 'public' and 'private' places?
For our purposes, a private place can be considered a place where the
subject has a reasonable expectation of privacy; and a public place is a
place where the subject has no such expectation. Note that there may be private
places on public land (such as a tent on the beach) as well as public places on
private land (like at a large private party or concert where there is generally
no expectation of privacy when many people are openly taking photographs). This
general principle is a good starting point when gauging whether the Free-Photos.biz
community is likely to require that the consent of the subject should be
obtained before uploading.
As always, of course, if there are any local laws which control the taking of
photographs, or the use that may be made of them without the subject's consent,
those will take precedence.
Legal issues
There are a variety of non-copyright laws which may affect the photographer
and
the uploader, including
defamation,
personality rights and
rights to privacy. In consequence, the commercial use of these pictures may
still be problematic if the depicted person does not agree. Even if the
copyright license allows for commercial use (which is required for an image to
be in the scope of Free-Photos.biz), the permission of the photographed person
may still be needed in some countries.
You should bear in mind that defamation may arise not only from the content
of the image itself but also from its description and title when uploaded. An
image of an identified unknown individual may be unexceptional on its own, but
with the title "A drug-dealer" there may be potential defamation issues
in at least some countries.
Acceptability
These vary from country to country, but the general rule is that an image is
definitely unacceptable to Free-Photos.biz if it is illegal, or arguably illegal,
in any one or more of: (a) the country in which the photograph was taken; (b)
the country from which the image was uploaded; (c) Germany (where Free-Photos.biz images
are stored).
Moral issues
Not all legally-obtained photographs of individuals are acceptable to Free-Photos.biz
even if they otherwise fall within the
project's scope. The following types of image are normally considered
unacceptable:
Those that unfairly demean or ridicule the subject
Those that are unfairly obtained
Those that unreasonably intrude into the subject's private or family life
These are categories which are matters of common decency rather than law.
They find a reflection in the wording of the
Universal Declaration of Human Rights, Article 12: (No one shall be
subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation).
The extent to which a particular photograph is "unfair" or "intrusive" will
depend on the nature of the shot, whether it was taken in a public or private
place, the title/description, and on the type of subject (e.g., a
celebrity, a non-famous person, etc).
This is all a matter of degree. A snatched shot of a celebrity caught in an
embarrassing position in a public place may well be acceptable to the community;
a similar shot of an anonymous member of the public may or may not be
acceptable, depending on what is shown and how it is presented.
Re-use of the image
Free-Photos.biz images are released under wide licences, but without any guarantee
that they are free of non-copyright legal restrictions on re-use. Someone
re-using in a derogatory manner an unexceptional Free-Photos.ibz image of an
identifiable subject might run the risk of the subject suing for defamation. But
since neither the photographer, the uploader nor Free-Photos.biz have encouraged
such defamatory use, the image itself is still perfectly acceptable to Free-Photos.biz
The fact that a photograph is capable of being misused does not mean, in
itself, that it is objectionable here.
Putting something under the public domain or a free license does not open the
door for abuses of the right of publicity or defamation on-wiki or off-wiki.
These acts are just as illegal as they would be otherwise, no matter the
copyright status of the image, and that punishment can be enforced even on, for
example, abusive re-uses of public domain US government images.
Examples
In each case, of an identifiable individual with no evidence of consent
given, and assuming no defamation or other legal issues:
No consent was required for this shot as it was taken in a public place
Normally OK
An anonymous street performer
An anonymous person, in a public place, especially as part of a larger
crowd
Partygoers at a large private party where photography is expected
A basketball player competing in a match which is open to the public
This image is acceptable, even without consent, but a non-pixellated
version entitled "An obese girl" was deleted as potentially
derogatory
Normally not OK
A man and woman talking, entitled "A prostitute speaks to her pimp"
(possible defamation)
An identifiable child, entitled "An obese girl" (potentially derogatory
or demeaning)
Partygoers at a private party where photography is not permitted or is not
expected (unreasonable intrusion without consent)
Nudes, underwear or swimsuit shots, unless obviously taken in a public
place (unreasonable intrusion without consent)
Long-lens images, taken from afar, of an individual in a private place
(unreasonable intrusion)
No. The
{{Personality rights}} template has nothing to do with the allowability or
otherwise of an image under these rules. Its purpose is simply to warn re-users
of Free-Photos.biz’ content that local laws may impose additional requirements on
re-use, over and above those that we enforce here. If a photograph fails the
rules on this page it must be deleted, and it is never a valid argument that
adding a
{{Personality rights}} template will allow it to be kept.
Removal at the request of the subject, photographer or uploader
Sometimes the subject, photographer or uploader of an image requests that it
be removed from Free-Photos.biz, for example because it may cause embarrassment.
Generally, images are not removed simply because the subject does not like them,
but
administrators are normally sympathetic to removal requests where good
reasons can be given.
Avoiding problems
It may sometimes be possible to avoid the legal and moral issues mentioned
here, for example by:
Anonymizing the image (e.g., by pixellating the subject's face or
by cropping it out)
Careful choice of title and description
Obtaining and recording the consent of the subject
Re-taking the picture (e.g., from another angle) so that the
subject cannot be identified.
Country
specific consent requirements
In a number of countries consent is needed for just taking a photograph of one or more identifiable people,
to publish it and/or to use it commercially even if the person is in a
public place. The following is a list of countries where consent is
needed for one or more of the mentioned situations.
This list is incomplete: Just because a country isn't listed here, it
does not reflect a fact that everyone is free to
take/publish/commercially use pictures of people in public spaces in
that country.
Consent required for action related to a picture of a person in a public place (by country)
Taking a picture of a person in a public space: Does not require consent
Publishing pictures of a person in a public space: Requires consent (see details below)
Commercial use of a published picture of a person in a public space: Requires consent (per above)
Per the Law Supporting the Rights of Authors, Composers, Artists and Researchers[1] article 38 (1) "[a]
Person who takes photographs, films, portraits or records voice of a
Person shall be prohibited from publishing, displaying or distributing
the original or copy of picture, film or voice record of the said person".
Some exceptions lie in the same article, mainly if the photo is
taken during a public event (1), related to public figures (1), of world
known celebrities (1), or authorized by the public authorities (1) or
the said person itself (2).
Argentina
Taking a picture of a person in a public space: Does not require consent
Publishing pictures of a person in a public space: Requires consent (see details below)
Commercial use of a published picture of a person in a public space: Requires consent (see details and exceptions below)
Publication of personal photographs without consent is considered
violation of privacy by the Argentine law. It is explicitly mentioned as
a civil infraction in the Civil Code[2].
The Argentine Copyright Law (Law 11.723)[3] gives the following rules for commercial use of images of people:
A portrait photograph of a person may not be placed in commerce
without their explicit consent or authorization. This consent can be
revoked at any time, but the revoking party is liable for indemnity.
Publication shall be free only for scientific, teaching or general
cultural purposes or where it is related to facts or events of public
interest or which have taken place in public.
Australia
Taking a picture of a person in a public space: Does not require consent (with some exceptions)
Publishing pictures of a person in a public space: Does not require consent (with some exceptions, see below)
Commercial use of a published picture of a person in a public space: Requires consent
It is generally OK to take photos of people in public without
obtaining permission. "There is also currently no tort of invasion of
privacy in Australia, but in ABC v Lenah Game Meats (2001) the
High Court did not exclude the possibility that a tort of unjustified
invasion of privacy may be established in the future. Based on this
view, the Queensland District Court found in Grosse v Purvis (2003)
that a tort of invasion of privacy had been made out on the facts and
awarded the plaintiff damages. However, this case concerned a long
history of harassment over many years and has limited application. As a
result, taking photographs of people in public places is generally
permitted."[4]
Exceptions might arise in cases where certain acts are done in what
is technically public space, but "where a reasonable person would
reasonably expect to be afforded privacy" (eg a secluded part of a
public beach): "it is an offence punishable by a fine or imprisonment to
photograph a person to provide sexual arousal or gratification if the
person is undressed or engaged in a private act in circumstances where a
reasonable person would reasonably expect to be afforded privacy, and
he or she has not consented to being filmed. A private act includes
using the toilet, bathing and engaging in sexual activities not
ordinarily done in public."[4]
More generally, subjects can prevent publication of "clearly
degrading" photographs: "Injunctions can be obtained to halt the
publication of photographs if the images are indecent, offensive or
otherwise demean the subjects in them (Lincoln Hunt Australia v.
Willesee (1986) 4 NSWLR 456 at p.464). The depiction has to be clearly
degrading though, merely saying you were "embarrassed" or
"uncomfortable" will be laughed out of court - Donnelly v Amalgamated TV
Services (1998) NSWSC 509."[5]
The state of Queensland has legislation explicitly prohibiting
recording of "private acts" in circumstances where a reasonable adult
would expect to be afforded privacy: Queensland Criminal Code S227A - Observations or recordings in breach of privacy. Such "circumstances" may arise either from the subject being in a private place (S227A(1)(b)(i)) or
from the subject "engaging in a private act and the observation or
visual recording is made for the purpose of observing or visually
recording a private act" (S227A(1)(b)(ii)). "Private acts" are defined
by the Queensland Supreme and District Courts Benchbook.[6] The Code includes as an example A
person changing in a communal change room at a swimming pool may expect
to be observed by another person who is also changing in the room but
may not expect to be visually recorded.
Austria
Taking a picture of a person in a public space: Does not normally require consent
Publishing pictures of a person in a public space: Does not in principle require consent, though in many cases it does (see explanation below)
Commercial use of a published picture of a person in a public space: Requires consent (as per above)
According to the Austrian Copyright Law[7][8]
it is illegal to publish or distribute any picture taken of a person
without permission if their legitimate interests are affected. Although
you may be legally entitled to publish the picture if the person is not
shown in a private situation and the picture is not used in a misleading
or derogatory context or for publicity purposes, this would be illegal
if the person successfully claims violation of their legitimate
interests[9]. Therefore it is strongly recommended[10][11]
to obtain permission from the person depicted in the photograph, unless
their appearance is merely accidental and not incriminating or it is a Person des öffentlichen Lebens
(public figure). It is not allowed to publish or distribute pictures
which could reveal intimate life details or private information without
interest for the public even if the photo was taken in a public space
and shows people well known in the public sphere (e. g. Minister kissing
a lady at the airport[11]).
In 2013, the Supreme Court (Oberster Gerichtshof) ruled that under certain circumstances, even just taking photos of people can violate their general personality rights.
In that case, a person took a photo of a lawyer visiting their house
and, when asked to explain the reason, responded that they took the
photo "for amusement" (zur Belustigung). The court ruling did
however affirm that cases where a person's presence on the photo is
merely incidental can be considered differently.
Belgium
Taking a picture of a person in a public space: Does not require consent
Publishing pictures of a person in a public space: Requires consent[12] (see exceptions below)
Commercial use of a published picture of a person in a public space: Requires consent (as per above)
All acts of reproduction or communication to the public of a portrait without prior consent are considered illegal.
Article 10 of the Belgian Copyright act implies not the right to prevent beeing photographed.
Belgian jurisdiction and doctrine have recognized that public
figures have to accept the publication of their image if the photograph
is not taken in private circumstances and if the publication has no
commercial purposes (e. g. advertising, merchandising).[14]
Consent is also implied or not needed for depicting people related
to news events of public interest, and when a person is incidentally
shown in a photograph depicting some public location or event.[15][13]
There are special rules and official recommendations if minors are involved.[13]
Brazil
Taking a picture of a person in a public space: Requires consent (see explanation below)
Publishing pictures of a person in a public space: Requires consent (as per above)
Commercial use of a published picture of a person in a public space: Requires consent (as per above)
Article 5, sections V and X, of the Brazilian Constitution states
that the privacy, private life, honour and image of persons are
inviolable, and the right to compensation for property or moral damages
to the image is ensured.[16][17]
The Brazilian Civil Code of 2002 deals with this matter in article
20 which has to be interpreted in the light of article 12 of the same
codification[18]
and the generally accepted doctrine, legalized by case law that
specifically recognizes the image right as an autonomous personality
right. This means, the right to own image is protected as such: Just
taking someone's photo without his or her permission (in private or
public space) can violate their image right and gives them a right to
compensation for moral damage. Of course copying, reproducing,
transfering, distributing, publishing or commercializing such a picture
are illegal and anti-constitutional acts. Simultaneous prejudice to
honour or reputation is not necessary. If the image is commercially
exploited or used in a derogatory way, this will only aggrave the
situation, but it is not a requirement for infraction complaint.[19][20]
Although not mentioned in the law, it is generally recognized both
by case law and legal doctrine that consent is implied or not needed for
pictures of[21]
public figures performing their public functions or activities (not in private life),
people who are present in a public space or participating in a
public event (unless the depicted person is the main focus of the
picture),
people related to news events of public interest (only if necessary
and reasonably justified and if the reported facts are true).
Once taken or published lawfully without obtaining the permission
from the person depicted, it is not allowed to re-use or publish the
same picture again at a later time or in another context without
consent.
The consent to publish or use a picture can be revoked at any time, but the revoking party is liable for indemnity.
Canada
Taking a picture of a person in a public space: ?
Publishing pictures of a person in a public space: Yes (with exceptions)
Commercial use of a published picture of a person in a public space: Yes
Aubry v. Éditions Vice-Versa inc.
established "that under Quebec law a photographer can take photographs
in public places but may not publish the picture unless permission has
been obtained from the subject." Exceptions include (i) a person of
public interest (ii) an unknown person who is implicated in a public
matter (iii) persons included incidentally.[22]
Whilst the Aubry case was decided under Quebec law, it was
taken to the Supreme Court of Canada and the court's approach in the
case is generally thought to give guidance on Canadian legal views on
these matters more generally.[23]
For example, the court explicitly rejected the US legal approach in
which a "socially useful purpose" can support publication of a
photograph without subject consent.[24]
British Columbia, Manitoba and Saskatchewan also have privacy
legislation giving individuals the right to sue for privacy breaches; in
other provinces, common law protection may apply.[25]
In addition, the the federal Personal Information Protection and
Electronic Documents Act (PIPEDA) provides privacy protection which
requires consent for the taking or publication of photographs for
commercial purposes.[25]
"For all activities, whether commercial in nature or not, provincial
and common law privacy protections limit the distribution of
photographs. Distributing an identifiable image of a person without
consent is likely to violate one or more of these privacy laws."[25]
China
Taking a picture of a person in a public space: Does not require consent
Publishing pictures of a person in a public space: Does not require consent (as per above)
Commercial use of a published picture of a person in a public space: Requires consent
According to the Chinese Civil Law Article 100[26] photos of regular people may not be used for profit (commercially) without consent.
Czech Republic
Taking a picture of a person in a public space: Requires
consent if the person is identifiable (with exceptions for legal
official use, scientific use, artistic use and news reporting).
Publishing pictures of a person in a public space: Requires
consent (with exceptions as per above; if the person consented to have
his/her picture taken in context from which it was obvious the picture
will be distributed, the consent for distribution under expectable
conditions is presumed).
Commercial use of a published picture of a person in a public space: Requires consent (with exceptions as per above).
The protection of own image and other personality rights is regulated by the Civil Code no. 89/2012 Coll., Articles 84 to 90.[27]
No consent for taking and using pictures of a person is needed to
protect or exercise other rights. Also, the consent is not needed for
legal official purposes, or for images of public appearances in matters
of public interest. (Art. 88)
Exception is granted also for appropriate use for scientific or
artistic purposes and for press, radio, television, or similar news
reporting. (Art. 89)
No exception may be used to disproportionately invade the person’s rights. (Art. 90)
Any consent given may be revoked at any time. (Art. 87 (1)) In that
case, the subject may be liable for damages caused by the revocation.
(Art. 87 (2))
Taking a picture of a person in a public space: Does not require consent
Publishing pictures of a person in a public space: Requires consent (with exceptions) (see definition below)
Commercial use of a published picture of a person in a public space: Requires consent (with exceptions) (as per above)
Although there is no specific law granting such right, court practice
gives certain amount of protection to the right to own image.[14].
The governmental Danish Data Protection Agency, has made a declaration
regarding publication on the Internet of pictures taken of persons in a
public area[28]:
The predominant point of reference, is that any publication of a
portrait photograph requires consent [of the person depicted]. The
reasoning for this, is that such a publication might provide the
depicted person with discomfort, possibly with other information such as
name, of the publication for all with access to the internet, and the
considerations of this discomfort is judged as more important than a
possible interest in publication.
A portrait photograph is defined as a photograph, with the purpose of depicting one or more specific person(s).[28]
The exceptions is traditional (non-internet) news-media-distributions (TV and newspapers) as well as in a context with "distinctly expessions of opinions and subjective judgements [that demands the publics attention]".[29]
Ethiopia
Taking a picture of a person in a public space: Does not require consent
Publishing pictures of a person in a public space: Requires consent[30] (see exceptions below)
Commercial use of a published picture of a person in a public space: Requires consent (as per above)
Reproduction of the image does not require consent:[31]
for celebreties and politically exposed persons (public figures).[32]
for scientific, cultural or educational purposes.
for facts of public interest, public events and celebrations.[33]
Finland
Taking a picture of a person in a public space: Does not require consent
Publishing pictures of a person in a public space: Requires consent in many cases
Commercial use of a published picture of a person in a public space: Requires consent, if the use is promotional
There is no specific law about photographing people or publishing the images; some of the issues are very vaguely regulated.
Taking a picture of a person in a public space does not require
consent. Offices, factories etcetera and fenced yards of these are not
regarded as public space, even when visible from outside, but are less
protected than areas defined as private (homes, tents, private yards,
dressing rooms etcetera).
Publishing pictures of a person in a public space may require
consent, unless the person clearly is not the main subject of the image
and the picture does not cause damage, suffering or despise to the
person in the picture. Photographs of public events or regular life in
the streets should be unproblematic. Photos of people who are of public
interest (famous politicians, artists, sportsmen) and who are carrying
out their public duties or going about their usual work may be published
without consent.
An image of an identifiable person may not be used for promotion (in
advertisements or similar), even if not identifiable for a stranger.
Commercial use is not different from non-commercial use, neither in such
cases nor otherwise.
France
Taking a picture of a person in a public space: Requires consent (see explanation below)
Publishing pictures of a person in a public space: Requires consent (as per above)
Commercial use of a published picture of a person in a public space: Requires consent (as per above)
Article 9 of French Civil Code states: “Everyone has the right to respect for his private life”.[34]
This is generally considered to include one's right to the own image, even if it is taken in a public space.[35][36]
According to case law and legal doctrine, photographs taken of (one or more) individuals require authorisation.[37]
Just taking someone's photo without consent (in private or public
space) can be considered as an invasion of privacy and gives them the
right to claim for cessation of the wrongful conduct. Everyone is
legally protected from unauthorised distribution, publication or
commercialisation of a picture of himself. The permission has to be
interpreted in a strict way (only to the extent expressly consented to
by the subject).[36]
It is generally recognized both by case law and legal doctrine that consent is implied or not needed for pictures of[36]
public figures performing their public functions or activities (not in private life)[38],
people shown in a larger group (without distinction of one or more individuals),
people who are present in a public location (unless the depicted person is the main focus of the picture),
people related to news events of public interest or public information purposes.
Although it is usually considered to be superior, the right to one's
privacy and own image is also not absolute and shall be balanced
especially with the right to freedom of expression.[39] This can be of certain relevance for professional photographers and artists.[40]
There are special rules and criminal sanctions if minors are involved.[35][41]
Germany
Taking a picture of a person in a public space: Does not
normally require consent if done by individuals for personal use only.
Collection, storage, processing and distribution by org, corp or public
authorities is subject to data protection laws and requires consent with
very few exceptions.
Publishing pictures of a person in a public space: Requires consent[42], unless it is a Person der Zeitgeschichte (public figure)[43] (see other minor exceptions below)
Commercial use of a published picture of a person in a public space: Requires consent (as per above)
Apart from the already mentioned there is a small number of additional exceptions to the above statement.
Publishing or propagating the image does not normally require consent:
Picture of a landscape or locality where the person is an insignificant or coincidental element (Beiwerk).
Picture of a public assembly/convention, parade or similar event that includes a person (non-prominently).
If distribution or exhibition serves a higher artistic interest.
Also in these cases, it is not allowed to publish or distribute the
picture without permission if this may affect the subject's legitimate
interests.[43]
Greece
In Greece taking photographs in public, whether identifiable people
are shown or nor and whether the photograph displays just one person's
portrait or a crowd of people, is protected as freedom of speech by the
Greek Constitution in Article 14, and consent is not required for taking
or publishing a photo of a person. At the same time, Article 9 of the
Greek Constitution protects the privacy of people inside their own homes
by forbidding illegal entry into their home, so a photographer cannot
enter a private home without permission. In Greek legal cases there is a
clear distinction between public spaces and private places: if a
photograph is made in the street or at a venue where the public is
invited (like, e.g. a shopping mall or a music nightclub) then the
photograph is considered part of the public record as there is no
reasonable right to privacy there, but if a photograph was made in a
private home and the entry into the home was without permission then the
photograph is an invasion of privacy (examples of that are photographs
by photojournalists who followed firefighters inside homes ravaged by
fire, whereas the firefighter had a legitimate purpose to enter the
private home the photojournalist was required to secure permission). The
freedom of speech clause in Article 14 of the Greek Constitution,
however, also places very specific limitations on speech or photographs
that can offend the Christian religion, the President of the Republic of
Greece, or shows military bases. For example, a photo of the President
of the Republic of Greece that would offend his personality wouldn't be
covered by the freedom of expression even if it was made in a public
place. Same with photos that would offend the Christian religion. As for
military bases, even if a photo showing the composition of the armed
forces was made from a public area, the photo wouldn't be protected as
free speech. But any other kind of photo that does not involve the
Christian religion, the President, or the armed forces is okay to take
and publish without consent by anyone as long as it was made in a public
space (e.g. the street) or even in a privately-held venue where the
public is invited (e.g. a shopping mall or museum). Property owners in
Greece have no right to restrict the publication of photographs already
taken. Furthermore, there have been legal cases that have established
that photography, including amateur photography, is protected not only
as freedom of speech but also as "personality development" per the
Article 5 of the Greek Constitution which states that "All persons shall
have the right to develop freely their personality" and the legal cases
have established that this means that property owners cannot require a
photography permit or ban photography on their premises if they invite
the public in their premises because the moment the property owner
invites the public the premises become part of the public space and the
individuals who decide to enter maintain their constitutional rights,
including the right to photography which has been defined as part of the
constitutional right to develop one's artistic personality. An example
of such a legal case was between photographers and a train station
operator in which the operator was forced to accept photography without
permission "in all parts of train stations where the public was
invited": http://www.synigoros.gr/resources/docs/199930.pdf
Greek case law has established that it is legal for citizens as well
as photojournalists to produce and publish photographs depicting
identifiable police officers as long as these photos were taken in
public, such as during political demonstrations or durings arrests in
the street, even if the identifiable police officer in the photo is
suspected of crimes: http://www.synigoros.gr/resources/docs/porisma_dimosiographos.pdf
There have been cases of police officers claiming that it is illegal
to take photos of them even in public, but when such cases went to the
courts the judges held that it is legal to record the police and publish
the photos. According
to the Greek Ombudsman, who cites a report by the Data Protection
Authority (DPA) numbered 67/2002: "the journalistic research regarding
the person who was arrested and the reporting of the press is protected
by the freedom of the press clause of Article 14 of the Greek
Constitution and it is irrelevant to the above reasosing" where "above
reasoning" is: "the police forces are restricted in their publication of
personal data of the arrested persons because these personal data are
considered sensitive personal data based on the Article 2, Sentence B of
the law 2472/1997 and therefore the processing of these data is
governed by the Article 7, Paragraph 2, Sentence E, Case BB of the above
law." Furthermore, it has been established that Greek Law 2472/1997 on
personal data processing does not apply to photography, whether the
photography is of an artistic or journalistic nature, as the law is
intented to be applied in cases of automatic computer processing of
databases containing marketing information such as automated calling
lists for advertisement calls, or spam e-mail.
The Greek Constitutition (as well as the European ECHR European
Convention on Human Rights and the United Nations documents on Human
Rights) gives individuals the right to freedom of speech (freedom to
transmit information and freedom to receive information), including the
rights to report, freedom of the press, freedom of the arts (which is
editorial use), etc. Individuals have a right to privacy inside their
own homes which is cancelled when they go out in the public place where
the freedoms to transmit and receive information take precedence and can
be freely exercised by any person (not only professional
photojournalists, this was established in legal cases soon after the
fall of the Greek Military Government of 1967-1974). Journalistic and
editorial use is irrelevant to the privacy law per the decision 67/2002
of the DPA. According to Greek law regarding the "right to report" and
freedom of speech, there is no restriction on the taking or publication
of photographs of identifiable people in public places. Journalists and
television regularly show identifiable people in the street without
their consent, and street photography exhibitions are regularly being
held in art galleries and also at the Syntagma Metro Station without the
consent of the subjects. Furthermore, the culture in Greece is very
liberal and Greeks don't mind being photographed and will happily pose
for the camera of a tourist, and photographers in small villages are
welcomed as very respectable and important persons. The Ombudsman of
Greece has agreed that taking and publishing photographs is an act of
"personality development" since the photographer-artist-journalist
expresses his or her personality by exercising their freedom of speech
by photography and publication, and they also develop their artistic or
journalistic personalities in the same way.
However, using a photo for a commercial advertising of a product,
let's say by printing the photo on an advertising billboard on the
street which promotes a brand of biscuits, is illegal without the
consent of the person, unless the photo shows a group of people in a
public space or if the person is only a small part of the advertisement.
Law 57 of the Greek Code was relevant on commercial advertising
photography before the Code was updated. There is also case law
regarding the application of the law of 1997 to published lists of
alleged rich tax evaders: a journalist was acquitted of charges of
privacy breach: journalistic/editorial use of information, especially
when in the public interest, is not a breach of privacy law. The same
legal principles can be applied to photography, especially photography
important in the public political discourse: http://www.bbc.co.uk/news/world-europe-20172516
Even photos taken inside private homes can sometimes be allowed to be
published without consent, if they are in the public interest or show
public personalities. This PDF
contains some information about the boundaries of the right to privacy:
The individual doesn't have an absolute right to privacy, if the
individual has chosen to put himself in a social environment or position
which is, for example, dominant or public, the rights of others (e.g.
freedom of the press) are greater than the right to privacy. This is
very relevant to public figures. Someone at a public event full of
photographers and the press should expect no privacy and they know it
before they decide to participate in the public event, e.g. as actors,
dancers, speakers or audience. But even inside the private home, for
example, if a police officer beats someone inside a home during a search
warrant execution, and there is a photo (e.g. by a neighbour who
entered the house) then the photograph is in the public interest and
therefore can be published. The press is allowed to expose private facts
that prove someone who says an opinion in public contradicts his
private life, e.g. someone protesting nudism in public while being a
secretive nudist in private cannot expect privacy protections from the
law if journalists discover his private nudism and expose him.
The Law 366 of the Greek Code (366 GPC) says (according to the PDF)
that the law of defamation doesn't apply if the statement is true. For
example the caption of a photo describing a policeman beating a civilian
wouldn't be considered defamation if the photo shows a policeman
beating a civilian because the caption would simply describe the truth.
The same law recognizes that there is no intrusion of privacy when the
private fact is related to public activities. For example, photos of a
politician accepting a bribe from a businessman, even if the photo was
taken inside a private home, it would be in the public interest and
therefore it could be published.
Hungary
Taking a picture of a person in a public space: Requires consent (with exceptions)
Publishing pictures of a person in a public space: Requires consent (with exceptions)
Commercial use of a published picture of a person in a public space: Requires consent (with exceptions)
In Hungary, the right to the own image is guaranteed by the Civil code: the 1959. évi IV. törvény a Polgári Törvénykönyvről[44] (until 2014.03.14.) and the 2013. évi V. törvény a Polgári Törvénykönyvről[45] (from 2014.03.15.).
According to the law above, “It is required the consent of the
person for taking or publishing of the image [or voice record] of a
person”.
Exceptions:
public figures performing in their public functions or activities (not in private life),
people shown in a larger group (without distinction of one or more individuals).
In all of these cases, it is not allowed to publish or use images that may “harm the honour or reputation or also the public image of the depicted person”.
India
Taking a picture of a person in a public space: Does not require consent
Publishing pictures of a person in a public space: Does not require consent (with exceptions)
Commercial use of a published picture of a person in a public space: Requires consent (as per above)
In general you are free to take pictures for private use of other
people in public areas under the Constitution of India (CoI) article 19,
however publishing a photo in a manner that might be "embarrassing,
mentally traumatic" or causing "a sense of insecurity about [depicted
persons] activities" is illegal under the CoI article 21.[50]
Japan
Taking a picture of a person in a public space: Requires consent (see exceptions below)
Publishing pictures of a person in a public space: Requires consent (as per above)
Commercial use of a published picture of a person in a public space: Requires consent (as per above)
There is no law in Japan that formally defines "right of portrait",
"right of publicity", or other related rights. However, with reference
to Article XIII of the Constitution of Japan, a ruling by the Supreme
Court has stated:
"Any person possesses the
freedom to not have his/her feature or figure (hereafter 'feature etc.')
photographed without his/her consent, as one of the freedoms guaranteed
for the individual's personal life.
個人の私生活上の自由の一つとして、何人も、その承諾なしに、みだりにその容ぼう・姿態(以下「容ぼう等」という。)を撮影されない自由を有する"
—Kyoto Fugakuren Incident, Keishu Vol. 23, No. 125 at 1625 (Supreme Court of Japan Grand Bench 1969)
This ruling deferred to name this right "the right of portrait
(肖像権)", but this right is generally regarded as its Japanese equivalent.
According to an article by the Japan Professional Photographers Society,[51] the exceptions defined by Tokyo High Court is as follows:
The expression (in this case, the photograph) is reasonably a matter of interest within the society.
The content and method of expression is not unjust.
If and only if these two conditions are met, the feature etc. of an
individual may be photographed or published without the person's
consent. If a photograph is to be published or is made public in any
way, the photographer must inform the subject the exact manner and
purpose to publish and obtain explicit permission.[51] Other precedents have been compiled by H. Kawarazaki, Esq. and is cited here for reference.[52]
Libya
Taking a picture of a person in a public space: Does not require consent
Publishing pictures of a person in a public space: Requires consent (see exceptions below)
Commercial use of a published picture of a person in a public space: Requires consent (as per above)
A photographer may not show, publish or distribute a photograph
unless the people depicted in the photograph have consented, unless the
photograph is of a public event or of officials or persons enjoying
public renown, or the public authorities have given permission for its
publication for the general welfare. Notwithstanding the preceding, no
photograph may be shown or circulated if doing so would result in
detriment to the honour, reputation or social standing of the person
depicted in the photograph.
Taking a picture of a person in a public space: Does not require consent
Publishing pictures of a person in a public space: May require consent (see explanation below)
Commercial use of a published picture of a person in a public space: May require consent (as per above)
Dutch law has a particular approach to the image right of the person portrayed (so called portretrecht or “portrait right”) which differs from most other countries.[53] The “portrait right” is seen as part, or derived from the author's (copy)right (auteursrechten). Therefore, there is no legal way to object to being photographed (provided there is no other violation of privacy[54].
In this context, Dutch courts apply the concept of “public figure”, who
usually is expected to accept more public interest than others[55] since the image right of the person depicted does not exist before the picture is captured.
Articles 19-20 of the Dutch Copyright Act grant property-like
protection to persons who have been portrayed on photos or other
depictions, especially if they have commissioned their own portrait. If a
portrait is made without having been commissioned by or on behalf of
the person(s) portrayed, article 21 of the Dutch Copyright Act allows
individuals to prevent the use (openbaarmaking, “disclosure”) of their portrait, if “a reasonable interest” to do so can be established.[56]
In principle, it does not matter whether the photo was taken in a
public or private space and whether there was a permission or consent to
be photographed or not. The “reasonable interest” claimed as opposed to
the publication (openbaarmaking) of the picture has to be
balanced by the judge against the rights and interests invoked by the
defendant, like press freedom or freedom of expression. Besides misuse,
undesired advertising or damage to reputation, reasonable interests may
be privacy concerns[54], but also commercial interests of the subject in order to merchandise his or her own picture by him or herself.[53]
New Zealand
Taking a picture of a person in a public space: Does not require consent (with some exceptions)
Publishing pictures of a person in a public space: Does not require consent (with some exceptions)
Commercial use of a published picture of a person in a public space: ?
Taking a picture of a person in a public space: Does not require consent
Publishing pictures of a person in a public space: Requires consent (see exceptions below)
Commercial use of a published picture of a person in a public space: Requires consent (as per above)
Article 45c[57]
of the Norwegian Copyright Act states that photographs of a person may
not be reproduced or shown publicly without consent of the person
depicted, except
when the picture is of interest to the general public
when the picture of the person is less important than the main object of the photography
when the person in the picture is part of an assembly or parade in public or in events of interest to the general public
This protection applies during a person's lifetime and for 15 years after the year of their death.
Even if these exceptions are met, it is still illegal to publicize a
photography if the photography is defamatory, derogatory, demeaning or
in any other way tramples on the dignity or honor of the depicted.[58]
Consent given for publication only applies in its specific context.
That is to say that if a person has allowed publication of their
depiction in a newspaper article for instance, that does not mean they
have given consent for that picture to be reproduced anywhere else.
Peru
Taking a picture of a person in a public space: Does not require consent
Publishing pictures of a person in a public space: Requires consent (unless for public figures acting in public)
Commercial use of a published picture of a person in a public space: Requires consent (see details below)
The Constitution of Peru of 1993 is one of the few (besides Spain and Brazil) which explicitly mentions a fundamental right to own image (Article 2.7).[59]
The profitable use[60]
of a person's image or voice is not allowed without their explicit
authorization (...). This consent is not required, if the use of the
image or voice is justified by the notoriety of the person or their
official position, facts of general importance or public interest, or
scientific, educational or cultural purposes; neither is it required if
the use of the image is related to facts or events of general interest
celebrated in public. These exceptions do not apply where the use of the
image or voice attempts against the affected person's honour, prestige
or reputation.
As seen above, current civil law still uses the term “profitable use” (aprovechamiento[60]). Relevant post-1993 case law, as well, deals mainly with commercial image use like undesired advertising[61] etc., or defamation cases[62][63].
However, the constitutional Legislator made clear his intention to
protect the right to the own image as such, not for commercial use only
and without requiring to prove prejudice to honour or reputation (see
Debates of Constitutional Commission[64]).
Therefore, possible constitutional problems with applying civil law
should lead us to assume that consent is required by Peruvian law for
any reproduction or distribution of a person's picture, unless the
exceptions mentioned above are present (particularly if it is a public
figure acting in public). This is supported by Peruvian legal doctrine[65] and case law[62][61].
Poland
Taking a picture of a person in a public space: Does not require consent
Publishing pictures of a person in a public space: Requires consent[66] (see exceptions below)
Commercial use of a published picture of a person in a public space: Requires consent (as per above)
Publishing or using a picture of a person who has been payed to sit for their portrait: Does not require consent[66]
The Polish Civil Code mentions the right to the image as a personality right protected by civil law.[67]
Exceptions from the consent requirement are named in the Copyright Law[66]
“2. Consent is not required in the case of the publishing of the image:
1) of a commonly known person [public figure], if the picture was
taken in connection with the exercise of their public function, in
particular political, social, professional,
2) of a person, when he or she constitutes a part of a whole as in a gathering, landscape or public event.”
According to case law, “subsequent publications do not require
consent (provided there was a consent to the first publication) provided
that the original source is specified and no changes have been made.”[68]
Portugal
Taking a picture of a person in a public space: Does not require consent (unless the subject expressly refuses to be photographed)
Publishing pictures of a person in a public space: Requires consent[69] (see exceptions below)
Commercial use of a published picture of a person in a public space: Requires consent (as per above)
According to Article 79(2) of the Portuguese Civil Code, publication/reproduction of the image does not require consent:
for celebreties and politically exposed persons (public figures).[70]
for scientific, educational or cultural purposes.
for images of public locations or related to facts of public interest.[71]
In all of these cases, it is not allowed to publish or use images that may “harm the honour or reputation or simply the public image of the depicted person” (Article 79(3)).
Due to Portuguese criminal law regulation concerning privacy it is
illegal to take a picture of a person who opposes to being photographed.[72][73]
Russian Federation
Taking a picture of a person in a public space: Does not require consent
Publishing pictures of a person in a public space: Requires
consent if such image is the principal focus of use (e.g. portrait
photograph) and the use of the image is not in the the state's,
society's or other public interest.
Commercial use of a published picture of a person in a public space:
Requires consent if such image is the principal focus of use (e.g.
portrait photograph) and the use of the image is not in the the state's,
society's or other public interest.
Publishing or using a picture of a person who has been payed to sit for their portrait: Does not require consent
The law makes no exceptions with regard to pictures of officials or
persons enjoying public renown, consent is required even in that case.
See Art. 152-1
of the Civil Code of Russian Federation (as added by the Federal Law №
231-FZ of Dec. 18, 2006). However, consent is not required if the image
is used in the state's, society's or other public interest. In the
resolution of the Plenum of the Supreme Court of the Russian Federation
the term "public interest" was clarified:
"
Article 152 of the civil code of the Russian
Federation specifies that the publication and further use of the image
of a citizen is allowed only with consent from the citizen. Such consent
is not needed in particular when the image is used in state, social or
other public interests.
The term public interest should not refer to
any interest of the public but rather to the need of the society to
reveal and expose the threat posed to the democratic state governed by
the rule of the law, civil society, public safety and environment.
The courts should distinguish between the
information on facts (even the disputable ones) that positively
influence the discussion of the matters concerning for example the
execution of the duty of the officials and public figures in the society
and the information on the details of the private life of a person not
engaged in any public activity. Whilst in the former case the mass media
perform the civil duty informing the citizens on the matters of public
interest, in the latter case, however, they play no such role.
Taking a picture of a person in a public space: Does not requires consent (with exceptions)
Publishing pictures of a person in a public space: Does not requires consent (with exceptions)
Commercial use of a published picture of a person in a public space: Does not requires consent (with exceptions as per above)
The protection of own image and other personality rights is
regulated in the Constitution of Slovakia, the Criminal Code and the
Civil Code. In resume: [55]
A person whose personal rights have been violated unjustifiably
according to art. 13 of the Civil Code shall be able to request that the
said violation be terminated and the consequences originating therefrom
be eliminated, in order to obtain appropriate satisfaction. In those
cases in which such satisfaction is insufficient, because the dignity
and social standing of the affected person have been considerably
diminished, the affected person may apply for compensation for
non-pecuniary damages.
In general a consent isn't required, but if the depicted person feels
that his/hers personal rights have been violated by having his/her
photograph taken and/or published and/or commercially used may sue for
infringement of basic human rights for privacy (thus a basic level of
privacy is to be expected on public streets).
South Africa
Taking a picture of a person in a public space: Does not require consent
Publishing pictures of a person in a public space: Does not require consent
Commercial use of a published picture of a person in a public space: Requires consent
Photographing a person without their consent in an area where there
is no reasonable expectation of privacy is permitted as a general rule.
There may be some restrictions on photography in general in certain
places based on municipalbylaws and the National Key Points Act which is related to national security issues.[75][76] Consent is required to use photographs of identifiable persons for advertising purposes.[74][77]
Spain
Taking a picture of a person in a public space: Requires consent (see definition below)
Publishing pictures of a person in a public space: Requires consent (as per above)
Commercial use of a published picture of a person in a public space: Requires consent (as per above)
In Spain, the right to the own image is guaranteed by Constitution (Sections 18.1 and 20.4).[78]
Civil law deals with this subject in the context of privacy legislation (Fundamental Law No. 1/1982).[79]
According to section 7.5 of the above law[80], “the
taking, reproducing or publishing of the image of a person captured by
photography or filming or any other means in places or moments of
private life or outside these” is considered to be an “illegal intromission in private life”, unless in some specific cases. The same applies under section 7.6 of the mentioned law to the illegitimate “use of the name, the voice or the image of a person for publicity, commercial or similar purposes.”
The exceptions to the above statement are the following:
There is no illegal intromission:
In case of explicit consent of the concerned person (section 2.2).[81]
In case of predominant and relevant historical, scientific or cultural interests (section 8.1).
It is allowed to capture, reproduce and publish a picture without permission if the person depicted is a public figure[82]and the picture is taken in a public event or in a public space, open to everybody (section 8.2.a).[83]
It is allowed to propagate graphical information about public events
or occurrences when the image of a particular person appears merely
incidentally (section 8.2.c).
Later commercial re-use of previously published news pictures or
public figures' images (lawfully released without permission) is not
allowed without the consent of the person(s) affected (see Sentence
231/88 of the Spanish Constitutional Court, dealing with the death of
the star matador Paquirri).[84]
Special rules apply to minors and incapacitated persons. If they are
under a legal disability, written consent from a legal representative
is to be obtained in order to capture or publish or use their picture,
and shall be submitted to the local Public Prosecutor's Office for
approvement (section 3 of the above law).
Other regulations: Section 491.2 of the Spanish Penal Code
penalizes the use of the image of the King or any of his ancestors or
descendents, the Prince or Princess Consort, the Crown Prince, the
Regent or any Member of the Regency in any way that can damage the
prestige of the Crown.
Sweden
Taking a picture of a person in a public space: Does not require consent ([85]#5, see below)
Publishing pictures of a person in a public space: Does not require consent ([86], see below)
Commercial use of a published picture of a person in a public space: Requires consent ([85]#3a, see below)
Taking a picture of a person in a public place is allowed as a
general rule. Places exempt from this rule are courts of law or
security-classed places. Also, with a new law you are not allowed to
take pictures concealed without consent if it is a private area (e.g.
restroom, showers). Publishing a picture of a person is generally
allowed, as long as no abuse of personal integrity is involved. Within a
journalistic framework (in a publication with a publisher accusable by
law) even more freedom is allowed. Use of a picture of a person will
require consent if used in marketing or in advertising, other commercial
uses might not require consent.[87]
Switzerland
Taking a picture of a person in a public space: Requires consent[88] (see explanation below)
Publishing pictures of a person in a public space: Requires consent (as per above)
Commercial use of a published picture of a person in a public space: Requires consent (as per above)
Swiss civil law contains a general clause for protection of
personality rights, which may be restricted only with the consent of the
person affected.[88]
This applies to the right to the own image, even if a picture is taken
in a public space. In principle, any unauthorized picture which aims to
depict the person as such is considered an infringement of personality
rights (according to the jurisprudence of the Swiss Federal Court).
Therefore, just taking a person's photograph is an offensive act and
consent must be obtained from any person recognizably depicted as an
individual, unless their appearance is merely accidental and has nothing
to do with the purpose of the image. Consent can be given expressly
(either written or verbal) or implied through actions. It is generally
recognized by case law and legal doctrine that consent is implied for
pictures of public figures, at least when performing their public
functions or activities (not necessarily also in private situations).
Consent is also implied for people consciously and voluntarily exposed
to the public in some kind of public event. As an exception, predominant
and mostly public interests (e. g. public information, science) will
allow an unauthorized picture to be admitted.[89]
The Swiss personality right to privacy does not protect financial
interests. Therefore it makes no difference in terms of the right to
one's own image if a picture is used commercially or in a non-profitable
way.
Taiwan
Taking a picture of a person in a public space: Does not require consent
Publishing pictures of a person in a public space: May require consent (see exceptions below)
Commercial use of a published picture of a person in a public space: Requires consent (as per above)
In Taiwan (Republic of China), although there's no formal definition
of “right of portrait”, however the mentioned right is considered as
parts of rights of personality or rights of privacy, and protected by
civil codes (Article 18, 19, 152, 184 and 195-1).[90]
Publication/reproduction of the image does not require consent as
favour of public interests or fair usage. In all of these cases, the
personality (honour, reputation, public image) of depicted person should
not be infringed.
As the ruling of Su No.2476, ROC 91 (2002) by the Taipei District Court (臺北地方法院91年度訴字第2476號判決), “Commercial
usage would be seen as an infringement of the ‘right of portrait’, if
author does not declare his/her intention at first.”[91] Also ruling of Shang-Yi No.958, ROC 94 (2005) by the Taiwan High Court (臺灣高等法院94年度上易字第958號判決).[92]
However the “right of portrait” cannot be formed and protected, if
appearances or features of any individuals which cannot be identified or
recognised in the media (photographs, video, etc.), according to the
ruling of Min-Zhu-Su No.53, ROC 102 (2013) by the Intellectual Property
Court (智慧財產法院102年度民著訴字第53號判決), “Using facial features of a individual
without permission in any photographs or visual media is an offence,
which infringes individuals own right of portrait. However, the claimed
right cannot be formed, if the media contains only partial features
which cannot be recognised as an individual, e.g. a photograph contains
only part of face from the person being photographed.”.[93]
United Kingdom
this section is a work in progress: draft for discussion, editing, improvement
Taking a picture of a person in a public space: ?
Publishing pictures of a person in a public space: ?
Commercial use of a published picture of a person in a public space: ?
Where there is a reasonable expectation of privacy, taking and
publishing of photographs without consent is likely to be an invasion of
privacy,[94] unless there is a clear public interest at stake. This follows in large part from balancing Articles 8 and 10 of the Human Rights Act,
which must be done on the merits of each case. Whether there is a
"reasonable expectation of privacy" is a difficult issue, and not simply
a matter of public or private space. "It is not possible to draw a
distinction in principle between, on the one hand, engaging in activity
which is clearly part of a person's private recreation time intended to
be enjoyed in the company of family and friends, and on the other,
routine acts such as a walk down a street, a ride on a bus or a visit to
the grocers to buy milk. It all depends on the circumstances."[95] An exemplary case is Campbell v Mirror Group Newspapers Ltd (2004), where a public figure was photographed outside a drug rehabilitation clinic.
A "reasonable expectation of privacy" may therefore apply even in
public spaces, particularly for children: a UK court has held that a
child's right to privacy was infringed when photographed on a public
street together with his parents.[96]
Another recent court case "upheld a right to eat a meal in a restaurant
in privacy even though the restaurant owner had consented to the
photography, because in the court's view it was a customer's normal
expectation not to be photographed there."[97]
Beyond expectation of privacy, however, recent cases establish privacy
rights for behaviour in public places that the subject does not want
others to know about.
In addition, it has been established that even public figures can
have a "reasonable expectation of privacy". "Stars like Michael Douglas
and Princess Caroline of Monaco have established in Court that everyone,
however famous, has a reasonable expectation of privacy and that photos
of them in their private life should not be published unless there is a
legitimate public interest in doing so. This does not just mean that
they are entitled to privacy when they are in private places such as
their home. It also extends to behaviour they would not want others to
know about."[98] Examples include Von Hannover v Germany[99] (Princess Caroline), Douglas v Hello! Ltd (2005, Michael Douglas), Campbell v Mirror Group Newspapers Ltd (2004) and POI v The Person Known as "Lina" (2011).[100]
A decision by the ECHR suggests the mere taking of a photograph may
also infringe privacy, but most cases involve publication so this area
is less clear.[96]
Photography at public events is likely acceptable without subject consent.[96]
Jump up ↑Article 1071-bis of the Civil Code of Argentina: “He
who arbitrarily interferes in someone else's life by publishing
portrait pictures and correspondence, (...) will be forced to cease such
activities, if he had not previously done so; and to pay the damages
duly stipulated by the judge, according to circumstances. (...)”
Jump up ↑"Private
act, for a person, means – (a) showering or bathing; or (b) using a
toilet; or (c) another activity when the person is in a state of
undress; or (d) intimate sexual activity that is not ordinarily done in
public (s207A) “State of undress” for a person means – (a) the person is
naked or the person’s genital or anal region is bare or, if the person
is female, the person’s breasts are bare; or (b) the person is wearing
only underwear; or (c) the person is wearing only some outer garments so
that some of the person’s underwear is not covered by an outer garment
(s20)" http://www.courts.qld.gov.au/__data/assets/pdf_file/0008/86174/sd-bb-131a-1-observations-or-recording-s-227a-1.pdf
Jump up ↑Article 10 of the Belgian Copyright Law of 30 June 1994: "Ni
l'auteur, ni le propriétaire d'un portrait, ni tout autre possesseur ou
détenteur d'un portrait n'a le droit de le reproduire ou de le
communiquer au public sans l'assentiment de la personne représentée
(...)". English paraphrase by Peggy Valcke and Eva Lievens (Media Law in Belgium.
Alphen aan den Rijn, Netherlands, 2011, page 65): “According to this
article an author or owner of a portrait as well as any other person who
has a portrait in his possession, does not have the right to reproduce
it nor distribute it to the public without the consent of the person
portrayed (...)”.
Jump up ↑Short overview in English language: Legal Information by Global Advertising Lawyers Alliance GALA (Summary of Brazilian Copyright Law, see page 2 - "Image Rights").
Jump up ↑English translations are given in Intellectual Property Rights in Brazil
by Pinheiro Neto Advogados lawyers' office, São Paulo, Rio de Janeiro,
Brasília (See page 41-42 - "The Right to Image and Other Personality
Rights").
Jump up ↑The
obvious contradiction to the rule provided by article 20 of Civil Code
is resolved by observing the general prevalence of the right of privacy
and publicity over press and artistic freedom and freedom of expression,
applying reasonable criteria for weighing and evaluation of each case.
(See W. Vendrusculo, cited below, page 113-119)
Jump up ↑The Ethiopian Civil Code states in Article 27 as a principle: “The
photograph or the image of a person may not be exhibited in a public
place nor reproduced nor offered for sale without the consent of such
person”. (See reference link below)
Jump up ↑See Article 28. For all citations from the Ethiopian Civil Code see reference article by Fikadu AsfawThe Right to Privacy According To Ethiopian Law, published in February 2010 at Ethiopian Law Blog.
Jump up ↑Under Article 28 of the Ethiopian Civil Code the consent of the person concerned shall not be required “where the reproduction of his image is justified by the notoriety of such person or by the public office which he occupied.”
Jump up ↑“...
where the reproduction of the image is made in connection with facts,
events or ceremonies of public interest or which have taken place in
public”, this means, not only if the person is depicted on the occasion.
Jump up ↑French comment
on the Sentence of the Paris Court of Appeal of 5th November 2008 in
the case of an artist's photograph of a perfectly recognizable person
sitting on a public bench with her dog, titled “To Loose One's Head”.
Jump up ↑See French case law, see case: Miss X/Atlas, sentenced by the French Supreme Court in 1990.
Jump up ↑Section 22 of the German Artists' Copyright Act (KUG). The first sentence of the ruling provides: “Pictures are only allowed to be distributed or shown in public with the consent of the person depicted.”
Jump up ↑Italian's Copyright Law (Law 633/1941) provides in its Article 96: “The portrait of a person is not allowed to be exhibited, reproduced or put in commerce without the person's consent.”
Jump up ↑For all further citations see Article 97 of the Italian Copyright Law
Jump up ↑Under Article 97 of the Italian Copyright Law the consent of the person concerned shall not be required “where the reproduction of the image is justified by the notoriety [of the person] or the public functions performed.”
Jump up ↑“... if reproduction of the portrait is related to acts, events or ceremonies of public interest or performed in public spaces”, this means, not only if the person is depicted on the occasion.
↑ Jump up to: abArticle
10 of the Dutch Constitution of 1983 recognises the right of everyone
on respect for privacy. As an example, Dutch civil case law considered
infringement of privacy the “picture of a couple walking arm in arm
through park published by magazine”, objected by one of the depicted
individuals (TORT Collection of Case Law and Legislation concerning Privacy, 2006. See Page 13.)
Jump up ↑Official English translation published by the Peruvian Congress: “Every
person has the right: (...) 7. to his honor and reputation, to personal
and family privacy as well as to his own voice and image.”
↑ Jump up to: abSpanish term: aprovechamiento, in German this would be Verwertung.
Jump up ↑“En
cuanto a la voz y la imagen, como rasgos distintivos de la persona, se
reconoce la facultad de todo ser humano de disponer de su imagen y voz
libremente, así como impedir su reproducción, empleo o exhibición sin su
previo asentamiento. Si bien no se requiere de este asentamiento
tratándose de personajes públicos sobre actividades de interés público o
general, en el caso de particular este asentimiento es indispensable,
aunque su honor no esté siendo vulnerado.” Taken from the Diary of Debates of Constitutional Commission of 25th January 1993 (cited from [1]). English translation: The
right of ervery human being to prevent reproduction, use and exhibition
of their image without previous consent is recognized. Although this
consent is not required for public figures dealing with events of
general or public interest, consent is indispensable for regular,
private people, even if no harm to their honour and reputation is done
by the picture.
Jump up ↑Enrique Bernales Ballesteros (La constitución de 1993. Análisis Comparado. 2nd Ed., Lima, Peru, October 1996, p. 107.) cites Francesco Messineo stating: “La
propia imagen es protegida porque identifica al titular como ser
humano; consecuentemente, éste tiene el derecho de prohibir su
reproducción.” (“The own image is protected because it identifies
its owner as a human being; therefore the owner is entitled to prevent
the reproduction thereof.”) Citation taken from Dyrán Jorge Linares Rebaza: Acciones de Cobranza y Derechos Fundamentales. (search for "2. DERECHO A LA IMAGEN").
Jump up ↑Article 23 of the Polish Civil Code (Kodeks cywilny): “A
man’s personal goods notably his health, liberty, reputation, freedom
of conscience, family name, pseudonym, image, privacy of correspondence,
inviolability of home and scientific, artistic, inventive or
rationalising achievement, shall be protected by civil law independently
of the civil protection contemplated by other provisions.” (Translation by: Z. Negbi, in: Dominik Lasok (Ed.), Polish Civil Law: The Polish Civil Code. Leyden, 1975)
Jump up ↑Holding
cited from page 16 of the TORT Collection. This does not justify
commercial re-use whithout specific consent for that purpose (see the
case cited immediately before, on the same page).
Jump up ↑Article 79(1) of the Portuguese Civil Code provides: “The portrait of a person is not allowed to be exhibited, reproduced or put in commerce without the person's consent (...).”
Jump up ↑“The
consent of the person concerned shall not be required where the
reproduction of the image is justified by their notoriety or public
functions performed (...).”
Jump up ↑“(...)
if reproduction of the image is embedded in a picture of public
locations or related to facts of public interest or performed in public
spaces.”
Jump up ↑Article 199 of the Portuguese Penal Code provides: “Unlawful
recording and photographing. 1. One who, without consent, a) records
another person's words not intended for public knowledge (...) is
punished with prison up to one year or a fine (...). 2. The same penalty
applies to whom, against their will, a) photographs or films another
person, even taking part in events in which their presence is lawful; or
b) uses or permits to use such photographs or films, even if obtained
lawfully.”
Jump up ↑In 2007, there was a case of a hobby photographer arrested by the police
just for taking photos of kids at a funfair (they thought him to be a
pedophile). Although the police justified this measure by claiming the
missing parental consent to take photographs of their children, there is
a general consensus among legal practitioners that the police was not
acting legally. In this context, Marinho Pinto (today Bastonário of the Portuguese Bar Association) pointed out that “the
only case it is not allowed to take photos is when there is an explicit
refusal by the affected individuals. One has to actively oppose to
beeing photographed by another person,” he said, referring to Article 199 of the Portuguese Penal Code.
English: Act (1978:800) on name and image in advertising
. Riksdagen.se. Retrieved on 1 February 2014.
↑ Jump up to: abArticle 28 of Swiss Civil Code
states: “Everyone whose personality is being harmed unlawfully is
entitled to protect himself by suing anyone in court who participates in
the harmful act. A harmful act against personality is unlawful if not
justified by consent of the harmed person or by predominant private or
public interest or by Law”.
Jump up ↑.Excerpt of original text: 「如未告知拍攝之目的,而予拍攝照片後,持之作為廣告之用,自對被拍攝者之肖像權有所侵害」
Jump up ↑Excerpt
of original text:
「上訴人雖對系爭照片有使用權,但該照片係使用被上訴人之肖像,所以其使用方式仍不能侵害被上訴人之肖像權。上訴人將上開照片使用於軟體操作之系爭工具書
上及其所附之光碟中公開販售,不僅係以營利為目的而使用被上訴人之照片,而且使該照片公開販賣供不特定人買受使用,依法應得被上訴人同意,否則構成對肖像
權之侵害。」
Jump up ↑Excerpt of original text: 「未經他人同意,擅自使用表現他人五官之照片或視覺媒介之行為,即屬侵害肖像權。惟如照片僅表現被攝者之部分臉部,而無法由該局部特徵辨認係何人之面貌者,即不構成肖像權之侵害」。
Jump up ↑Technically
the UK has no right to privacy. However the Human Rights Act 1998 has
led to changes in this area: "many legal commentators have observed that
the influence of Article 8 of the Convention has caused the courts in
the UK to broaden the scope of the cause of action for breach of
confidence. In its broader form – now referred to as “misuse of private
information” – this cause of action might be said to be coming close to
conferring a right to privacy." findlaw.co.uk, Right to privacy