You’ve probably been in this situation before. Scrolling happily on Instagram, you suddenly pass a photo of yourself. Someone has posted a picture, with or without this intention, in which you do not look very flattering. Or you attended an event at work and your boss posted pictures of you on the company website. Can you do anything about it? In this blog we will discuss your most important rights concerning images of you on social media.
Right to your image and portrait right
First of all, there is the right to your image. This means that no image of you may be made without your consent. Don’t be misled, the term “image” should be understood broadly in this context: it concerns any image of you, regardless of the technique used to create it. A photograph, but also for example a drawing, painting, and even a sculpturefall under this! Videos, too, fall under this term. Videos, too, fall under this term.
But then there is also specifically the portrait right, a part of the right to your image. The portrait right means that anyone who has an image of you must have your permission to reproduce it (including copying and editing) or to share it with the public. This includes, for example, posting pictures on Facebook or Instagram, but also screenshotting and forwarding Snapchats to others, et cetera.
Yes, you understand correctly. Both the creation of your image and the publication of your image require your consent. It does not matter who takes/publishes your image: so even if it is a friend or family member. However, you must be depicted in a recognisable manner for your consent to be required: someone must be able to recognise you, for example by your face or even just your typical posture.
When all conditions are met, the obligation of consent remains until 20 years after your death. In principle, consent can be given in writing, orally, or tacitly (implicitly). However, if your genitals are visible, then the consent must be explicit.
It is important to note that it is generally assumed that when you pose for a photographer you give consent for that photo to be taken. But tacit consent to publicationis only accepted if there is no doubt whatsoever about that consent.
And the minor?
And what if you are a minor? Do different rules apply then? Well, then it is your parents or guardian who have to give consent. And as soon as you, as a minor, have sufficient judgement – can sufficiently assess the legal and other consequences of your consent – you too must give your consent (and not just your parents or guardian).
It is usually assumed that you have sufficient judgement when you are 12 to 14 years old. This is not unimportant when your school takes class photos for example, especially if they are then made available online.
A logical exception to the consent obligation to keep in mind is that when it comes to atmospheric images at a public place (for example Rock Werchter), consent does not have to be asked, at least when you are only pictured incidentally and thus you are not being targeted.
Finally, there is also the privacy legislation as we know it from the General Data Protection Regulation (GDPR). We should keep in mind that the GDPR is a lex generalis (a set of general rules) and therefore the right to your image and the portrait right as lex specialis override the GDPR. Nevertheless, the GDPR can clarify a number of general requirements from the portrait right and the right to your image, and can also add additional elements.
For instance, the GDPR poses certain conditions to the processing of personal data. The relevance is obvious: visual material by which you can be directly or indirectly identified falls under “personal data”. You can be identifiable on the basis of your face, for example, or even just on the basis of your arm with a specific tattoo or birthmark. “Processing” is understood to mean (among other things) collecting, storing, using, altering and making available, albeit not for purely personal or ‘household’ purposes (for example creating a family album or making private recordings at a sports event). But posting on social media is covered by this term.
To be able to process your personal data, there must be a “legal ground for processing “: for example, the processing is necessary to perform a certain agreement or to comply with a legal obligation, or the processor can demonstrate that the processing is necessary for the protection of a “legitimate interest” (whereby the processor must be able to prove that this legitimate interest outweighs your interest), or you have given your explicit consent.
The GDPR makes the consent requirement from the portrait right and the right to your image a lot more concrete. You can read more about consent as a ground for processing, and how it must be free, specific, informed and unambiguous, in our blog series on the GDPR. The right to revoke a given consent is also important here!
When images of you are put online, it is usually not possible to do so without your consent (or, in the case of your passing, the consent of those entitled under you). If the required consent has not been given, you are therefore within your rights to take action. Even if it is a friend, family member or employer who has put the image online.
As a photographer or organisation, do you find this quite complicated? Or do you think that your right to your image and/or privacy is being infringed? We are happy to help you with your questions at email@example.com!
Written by Sofie Moore, Legal Adviser deJuristen, and Kris Seyen, Partner deJuristen