Smile you are (legally) protected!

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. 

In 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.

Europe and Internet

This handbook is really a second edition. The first edition was published in1998 and followed an end-of-study essay on the subject. “For ten years, my publishing company had been asking me to update the work”! At last it is finished. In relation to the first work, this new publication includes two major developments: an examination of European case law and a section devoted to the Internet.   

Despite the omnipresence of the net and the infinite possibilities for abuses that it entails, the law has not undergone any major transformations in order to deal with the current situation. Earlier legal texts are always used as a basis for solving current problems. These texts did not require the emergence of the World Wide Web in order to be written. The first text referring to the right of personal portrayal goes back to 1886 and involves the notion of portraits.

“It was the advent of instant photography which brought about the development of the law relating to the subject because before this, in order to complete an image the posing time was longer and the model or subject would clearly have had to give their consent. The problems were always bound to multiply from the moment it became possible to take stolen photos”, explains the author.

The right of personal portrayal has become a Europe-wide issue over the last fifteen years, particularly following a series of media affairs such as those involving the opposition of Caroline of Monaco to German magazines. The princess attacked them on two occasions for telephoto shots taken while the princess was in the company of the actor Vincent Lindon or with her husband Ernst August de Hanovre.

In the first case, the European Court of Human Rights did not follow the advice of German courts and ruled that it was indeed a violation of her right of portrayal. In the second case it decided the opposite. The context made the difference between the two situations. In the first case, the photos clearly interfered with her private life while in the second; the paparazzi took photos showing her to look somewhat unworried while her father, prince Rainier, was ill. The European court ruled that the right to public information must prevail in this case.

Dutroux and his image

The right of personal portrayal is not absolute and the right to information, in certain circumstances, may take precedence over it. Marc Isgour cites the example of the Dutroux case in 2004, during which the accused claimed the right not to be filmed or photographed. The president of the court had granted his request but a few days later, the Flemish daily newspaper Het Laatste Nieuws and the magazine La Libre Match ignored this ruling.

“In theory, Marc Dutroux had the possibility of refusing that his image be disseminated, but this criminal case was of such importance in Belgium that, in my view, the right of information takes precedence here. I had also been consulted concerning the opportunity to publish or not to publish photos of Michel Nihoul on his release from prison. Here I also answered that the right to information took precedence. This would not have been the case six months later, because the link with current news was not established and in this case he could have invoked his right to be forgotten”.

The right to information does not authorize everything, however, and the media tends to forget this fact. While it is not rare to find photos from social networks in the press, particularly to illustrate general news, this practice does not happen automatically. In 2013, the Belgian Council of Journalistic Ethics, when called upon to comment on the use of an image posted on Facebook by a journalist, declared that, “The fact that journalists have access to photos online does not automatically grant them the right to reproduce them, but his can be waived when the person himself has allowed his image to become public”.

The carefree nature of social media

Are the images disseminated on social media public or not? The question has not been clearly answered… But the users themselves seem to be quite carefree. So who is unaware of the fact that by signing up for Facebook, the internet user automatically concedes the right to use of all published content to Mark Zuckerberg? This means that, in theory, the company could sell this information (even the most private) to third parties that would use it for commercial purposes, or in an advertising context.

However, the right of personal portrayal is not limited to the right to privacy, even though the two notions overlap to varying degrees. Sometimes they are completely the same, sometimes they are not related. In 2008, an incident opposed Nicolas Sarkozy and Carla Bruni with Ryanair. For one of its advertisements, the low-cost airline used a snapshot of the presidential couple taken while they were on holiday in Egypt. A speech bubble showed the ex-model saying: “With Ryanair my entire family can come to my wedding”. This did not go down well with the parties concerned. The French president went to court for the symbolic damages of 1 Euro while the singer claimed 500,000 Euros in damages. The judge did not grant her this amount; he reduced the figure to 60,000 Euros for abuse of the right of portrayal. It was not however, an attack on her private life given the notoriety of the couple and the nature of photography. 

A promise given…

Authorization remains a very important element. It is very important to think twice before granting it. Even though Belgian courts previously authorized the application of a ‘right of withdrawal ‘, they have shown themselves to be less inclined to do so in recent times. In 1987, a Flemish student posed nude for Playboy, during an all-expenses paid holiday in the Canaries and having received expenses. Even though she had authorized the dissemination of the photographs in writing, the article was never published. In 1993, the magazine wanted to reuse the photos, but the young woman, who had since become a television presenter, changed her mind. The law took her side while obliging her to reimburse the amounts paid to her.

Twenty-seven years on and the ruling might not have been so favorable to her. It could be argued that her change of mind was in breach of contract law. “A way out today might be the abuse of right, the fact that the use of an image, even with permission, causes a disproportionate prejudice in relation to the benefit gained. However, this argument has never been invoked before the courts”, explains Marc Isgour.

It has also happened that tacit authorization is recognized by the courts.  In the 1990s, a group of people had been filmed for several months by the RTBF TV channel. When the channel announced the screening of the report, the interested parties opposed it, claiming that they had given their consent to the making of a business film with restricted use and not for a public documentary. The judge did not rule in their favour.

In short, it does not do to mess with one’s image. As far as Marc Isgour is concerned the individual who feels prejudiced should take five factors into account: is there a real damage? Is the person recognizable? Why was he or she photographed and for what reason (existence of a right to information)? Was there really no commitment made? Finally, in what circumstances did the images become immortalized?

The answers given to these questions are always open to discussion. For example, A French court ruled against a magazine because it published a topless photo of Catherine Deneuve to illustrate an article that had no connection to the actress.

The right of personal portrayal is neither black nor white but is a very grey area. There are no easy solutions to this: the excesses of reality TV, excessive self-marketing, the generalization of social networks, the advent of drones, the development of computer-generated graphics or the proliferation of surveillance cameras will continue to pose thorny legal questions for the foreseeable future. 

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