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.