Any person has the RIGHT TO OPPOSE to the reproduction and dissemination of his/her own image, as such image is considered as personal data.
Whenever an image showing a person allows such person to be RECOGNIZED or IDENTIFIED, the person concerned is entitled to oppose to such use of his/her image and to claim for damages.
HOW TO PROCEED?
It is first necessary to obtain the special and EXPRESS AUTHORIZATION of the person concerned, prior to reproducing and using the photograph showing this person.
As a minimum, the abovementioned authorization should:
– Be established in writing
– Determine the exact photograph concerned (date, description of the photo, etc.)
– Clearly specify the exact usage that can be done of the photograph (website; social networks, TV report, public showing, etc.)
**Caution! It is necessary to obtain the person’s prior consent for each contemplated use of this person’s image.
– Specify the intended purpose of the intended use of the photograph (publicity, communication, etc.)
**Caution! It is ALWAYS necessary to obtain the person’s authorization before using a photograph of this person for any commercial purposes (which is not the case when use is for information purposes – see the exceptions below)
– Specify the validity period of the authorization
The authorization may be given either FREE OF CHARGE or FOR CONSIDERATION.
WHEN SHOULD AN AUTHORIZATION BE REQUESTED?
Whenever the person concerned is IDENTIFIABLE.
In other words, whenever the visual elements on the photograph allow a person to be identified. Wide-ranging criteria may apply, and the degree of identifiability will depend on the:
– Sharpness of the person’s facial features
– Size of the photograph, or the size of the persons shown on the photograph
– Setting of the photograph (elements that may render a context – such as this person’s house – and hence allow the person to be identified)
– Specific physical features (tattoo, hair style, etc.)
– The SETTING of the photograph may suffice to identify a person who is not otherwise shown very clearly (e.g.: a photograph showing the person’s house or car).
– Whether the person is in the FOREGROUND or the BACKGROUND is not a decisive factor for determining whether the person’s authorization is needed or not.
– The fact that only a FEW RELATIVES WILL BE ABLE TO IDENTIFY THE PERSON is not a decisive factor either.
– The LOCATION WHERE THE PHOTOGRAPH WAS TAKEN – whether a public place (street, etc.) or a private place (private home, etc.) – is not a driving factor for deciding whether any public release of the photograph requires the person’s prior authorization or not.
TYPICAL AUTHORIZED USES
SETTING / BACKGROUND
The person is identifiable, for his/her figure is associated with the building where he/she lives, which means that the person can be identified by neighbours or relatives, even if a mask is affixed on the photograph (District Court of Paris (TGI), 6 June 1984).
A person’s identification may be ascertained simply by the fact that this person may be recognized by a few relatives (concerning a video that was shot in a detox centre) (Court of Appeal of Aix en Provence, France, 21 Oct. 2004).
COMMERCIAL PURPOSE OF THE PHOTOGRAPH
Whenever the image is used for a commercial purpose (sales, advertising, etc.) it is not covered by the freedom of information, and hence it is essential to obtain the person’s consent.
– Court of Appeal of Lyon, France, 27 January 2005 – The publication of a bar helper’s photograph on the website of this person’s former employer, without prior authorization and even if such person might have accepted to take part in a photo session, constitutes a violation of this person’s right to respect for his own image.
In cases where a person is used to exploiting his/her own image because such image has a proven value (which is the case with celebrities), the unauthorized publication and dissemination of this celebrity’s image will be an aggravating factor in terms of the damages that can be claimed.
EXCEPTION: UNAUTHORIZED USAGE
SIZE OF THE PHOTOGRAPH
Identification is not possible when the person’s face on the picture is 3 x 2 mm in size and the general image definition is poor (Supreme Court of Appeal, 5 April 2012).
There is no violation of a person’s image right when the reduced size of a photograph showing a group of persons on a school’s advertising brochure makes it difficult to identify each person individually (District Court of Paris (TGI), 19 Nov. 1990).
Owing to the freedom of information, it is permitted to release photographs taken during a news event without first asking for the persons’ authorization, even if such persons are identifiable. But this is only possible if there is a DIRECT CONNECTION BETWEEN THE PHOTOGRAPH AND THE NEWS COMMENT.
– District Court of Paris (TGI), 18 Dec. 1996 – A picture taken during the Gay Pride event may not be used to illustrate a guide on homosexual venues in Paris, for in this case there is no evidence of a topical event.
– Supreme Court of Appeal, 21 Feb. 2006 – A picture showing a person asleep on a table in a disco in a report on alcoholism may not be related, per se, to a topical event.
** CAUTION! A clear distinction should be made, when it comes to using a photograph, between the authorization of the person who is shown on the photograph and the authorization of the person who actually took the photograph, which should also be obtained prior to publishing or reproducing the picture on the Internet or on any other media, whatever the specific circumstances.