Photographs of identifiable people
Template:Header Template:Guideline (en)
This article sets out some general guidelines to bear in mind when taking pictures of identifiable people that are intended for uploading onto Commons. 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 Commons (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.
Consent of the subject (who is a non-public figure) is required even for photographs taken in public places in the following countries (see list below).
Photographs taken in a public place
In the United States (where the Commons servers are located), assent 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), the Commons community 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 Commons 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, the uploader and/or the Wikimedia Foundation, including defamation, personality rights and rights to privacy. Citation needed 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 Commons), the permission of the photographed person may still be needed in some countries. On the file page, the Template:T template should be used to convey this information.
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 Commons 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) the USA (where Commons images are stored).
Moral issues
Not all legally-obtained photographs of individuals are acceptable to Commons 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
Commons 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 Commons image of an identifiable subject might run the risk of the subject suing for defamation. But since neither the photographer, the uploader nor the Foundation have encouraged such defamatory use, the image itself is still perfectly acceptable to Commons. 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:
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
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)
Can an image be made allowable by adding the Template:T template?
No. The Template:T 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 Commons’ 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 Template:T 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 Commons, 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 shooting a picture, 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.
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[1] 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
- 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)
Denmark
- 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 definition below)
- Commercial use of a published picture of a person in a public space: Requires consent (as per above)
The governmental Danish Data Protection Agency, has made a declaration regarding publication on the Internet of pictures taken of persons in a public area[2]:
- 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).
Germany
- Taking a picture of a person in a public space: Does not normally require consent
- Publishing pictures of a person in a public space: Requires consent, unless it is a Person der Zeitgeschichte (public figure)
- Commercial use of a published picture of a person in a public space: Requires consent (as per above)
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 (as per above)
- Commercial use of a published picture of a person in a public space: Requires consent (as per above)
Copyright Protection Law of Libya (Libyan Law No. (9) for 1968), Article 36:
- 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.
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: Template:Quote
References
This page is based on Wikimedia Commons' Photographs of Identifiable People's page ( July 14th, 2011 version) licensed under Attribution-ShareAlike 3.0 Unported (CC BY-SA 3.0)
See also
- Issues involving living people in WMF's BLP resolution
- WMF's May 2011 resolution regarding subject consent for images of identifiable living people
The following websites discuss the rights of photographers taking photographs in public places:
- Australia (NSW) - Australian street photography legal issues
- Canada - Photography laws
- Czech Republic - Statement of The Office for Personal Data Protection, Legality of monitoring of persons, Taken of sound or visual records of policemen in the service
- Germany - Recht am eigenen Bild
- New Zealand - Unlawful Photography in Public Places: the New Zealand Position
- UK - Photographers Rights Guide v2
- US - A Downloadable Flyer Explaining Your Rights When Stopped or Confronted for Photography and Photographers' Guide to Privacy (1999)
