Apart from considerations related to copyright, the person being photographed has a right to their image, which generally allows them to oppose the capture and dissemination of their image or to impose conditions on it. Therefore, it is usually necessary to obtain consent from the individuals depicted before publishing a photo.
Consent can be waived if the publication of the image is justified by a prevailing public or private interest. However, in such cases, it must be ensured that it is legitimate to assume such an interest exists (e.g., when reporting on a significant public event such as a sports event or a concert, or in a news article written in accordance with journalistic diligence). In case of doubt, consent should be sought from the individuals concerned beforehand.
These considerations apply regardless of whether the photos are recent or taken several years ago. Personality rights are inseparable from the person until their death and can be invoked at any time. Therefore, before publishing an archival photo, one should identify the people depicted and seek their consent.
Group Photos
A group photo can also infringe on the personality rights of the individuals depicted if they are recognizable. This infringement will be less serious if no particular person stands out from the group. It is necessary to evaluate whether this is the case in the specific situation, rather than relying on an abstract rule like the "six-person rule," which suggests that there is no infringement of personality rights if six or more people are depicted in the image. Even in such cases, it is still possible for an individual to stand out from others due to their position, image clarity, or other reasons, which necessitates obtaining their consent before publication.
When a group photo is published without prior authorization, it can only be definitively stated that there is no unlawful infringement of personality rights if the individuals are not identifiable—either due to the reduced size of the image, which prevents identification, or because the image resolution has been reduced to the point where it is impossible to recognize a face or a particular feature that identifies a specific person. In case of doubt, consent should be obtained from all identifiable individuals.
Photography in Public Spaces
Regarding photos taken in public spaces, if they are taken with the knowledge of all present and if the individuals depicted are not the main subject of the photos (e.g., if they are merely passersby near a local attraction), it is sufficient to remove the photo upon request by the photographed person (immediately or later) or to refrain from publication. However, there is no need to specifically approach them to inform them of their rights.
Legally Valid Authorization
In all other cases, consent from the individuals concerned must be obtained, and for it to be valid, it must be given freely and with full awareness. The nature of the information to be provided depends on the photo: does it depict multiple people or a single individual? In the former case, it is sufficient to inform the individuals that they have been or will be photographed and that the photo will be published. The nature of the publication should be specified (e.g., internet, print media, advertising brochure, etc.). If a person objects to the publication, their decision must be respected.
If the photo involves a particular individual, the procedure will be different because the general consent described above will not be sufficient. The individual must have the opportunity to review the photos intended for publication and be informed about the context of the planned publication. For example, if the photo is flattering and intended to accompany an article about a summer camp, its publication is likely to be more acceptable than a less flattering or compromising photo, or one intended for a sensitive context (e.g., illustrating activities of "problematic" youth).
Finally, if the photo depicts minors, consent from individuals with parental authority must also be obtained.
Withdrawal of Consent
Consent can be withdrawn at any time, which obliges the cancellation of the publication, provided it is still possible. If the withdrawal causes damage (e.g., if it prevents the use of already printed brochures), the person who withdrew their consent may be required to cover all or part of the resulting damages.
If the photo has already been published in print media, it is generally impossible to recall the already distributed copies. However, future use can generally be prohibited. If the photo was published on the internet, it is likely to have been quickly copied, disseminated, and archived, making it available everywhere, which prevents complete removal from the internet.
Possible Consequences of Unauthorized Publication
Anyone whose photo has been published without legitimate reason can oppose it at any time and assert their rights, potentially by filing a civil lawsuit. If the judge finds that there was an unlawful infringement of personality rights because the photo(s) were published without consent or in the absence of a prevailing public or private interest, they may order, in addition to the obligation to withdraw or destroy the images, compensation or even damages for moral harm. Financial consequences related to the need to destroy already printed brochures or flyers may also arise. Additionally, legal fees and other judicial costs (particularly attorney fees) will likely need to be covered.
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