Smile you are (legally) protected!
11/14/14

Taking and broadcasting photos has never been simpler since the internet became part of our lives. And questions relating to the right of personal portrayal have never been asked as much as they are today. In Belgium, there is no general law devoted to this subject but the subject is mentioned in a series of legal texts. Marc Isgour, lawyer and lecturer at ULg, has just published a work which reviews the questions raised on the subject and explores all the facets of the right of personal portrayal.

Two large ochre eyes with a mischievous air looking at the camera, the mouth open, revealing what seems to be a large smile: this crested macaque seems to have struck his best pose. The image is beautiful and yet the photographer had nothing to do with it. In 2011, a British man, David Slater, spent three days in the jungle of Sulawesi, in Indonesia, in the hope of bringing back some photos of this threatened species of monkey. Having moved away from his tripod for a few moments he found that a series of photos had been taken by the animal who had taken hold of the shutter release. Most of the photographs were unusable, blurred and poorly framed. But, conversely, some of them were almost perfect.

That could have been the end of the story if the Wikipedia website had not decided to use two of these self-portraits to illustrate its page on crested macaques. They reasoned that, as the monkey had taken the photo, there was no right of personal portrayal. This upset David Slater greatly, who adjudged that, on the contrary, he should be paid author’s rights and he threatened to start legal proceedings.

Welcome to the era of the web, an era where we are compelled to ask whether a monkey that has taken a ‘selfie’ has a right of personal portrayal… It has never been so easy not only to take but to disseminate photographs without necessarily having been granted approval by the individuals who feature in the photographs concerned.

Marc Isgour, a lawyer specializing in communication law and a lecturer at the Department of Arts and Sciences of Communication at the University of Liege, receives a phone call every week from someone claiming that their image has been used at their personal expense. While it is true that this type of reaction and protest is increasing, the lawyer thinks that it is only the “tiny tip of an enormous iceberg”.

Numerous problems and costly court cases

Today, everybody runs the risk of finding themselves on a blog, a social media site, media, banner or video-hosting site without their knowledge. Technological developments will not result in a reversal of this trend. After all, each street and house in the Kingdom of Belgium is visible on the web with one click and drones may one day make it possible to spy on one’s neighbor directly from above…

And yet, law-suits pertaining to the right of personal portrayal are not being filed by the hundreds. This is probably because the cost of access to justice remains high and disproportionate with regard to what a victim might expect to be awarded in damages if these are recognized as such by a court of law. This is all the more true because Belgian courts often award the symbolic sum of one Euro as compensation. 

COVER droit imageIn his work, The right to personal portrayal, recently published by Larcier(1), Marc Isgour cites some amounts recently awarded by the Belgian courts. The magazine Ciné-Revue was ordered to pay 2,000 Euros for publishing topless photographs of Mylène Farmer on holiday.  La Meuse journal was ordered to pay 3,500 Euros for publishing an out-of-context front-page photo of a local trader who was involved in a dispute with his customers. An online blog was ordered to pay 5,000 Euros for publishing photos of a person taken when the individual concerned was in an uncompromising position and accompanied by unpleasant comments… Even though it is true that the amounts being awarded are rising steadily, we are far from the excessive amounts sometimes mentioned during legal proceedings brought by certain individuals in France or elsewhere.

Just as in France, Belgian law does not have a specific legislative process for the right to personal portrayal. “The right to personal portrayal is nonetheless mentioned in an entire series of legal texts”, states Marc Isgour. “For example, it is mentioned in texts concerning copyright law, privacy law, the law governing the exercise of the profession of private investigator, the working conditions of paid footballers etc. and even in the penal code”. In his book, the lawyer looks at each one of the above and deals with the questions pertaining to each of them. Who are we allowed to photograph? Where can we photograph? Can we do it with or without authorization? For what purposes can we photograph? Etc.

(1) Marc ISGOUR, Le droit à l’image, Bruxelles, Editions Larcier, juin 2014, 392 pages

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