Image rights Flashcards
Only a human being can be a subject of the right to an image
Animals do not have the right to an image
A legal person does not have a right to publicity
If there are many people in a photograph, then there are many images
An image created for the purposes of art, performance, film, etc
If it allows us to recognize the real person, we can say that it is an image of an actor
Reklos and Davourlis v. Greece
- The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention.
- The baby’s image had thus been retained in the hands of the photographer in an identifiable form with the possibility of subsequent use against the wishes of the child and/or his parents
Image of a well-known person
- no authorisation shall be required to disseminate the image of a well- known person if it has been performed in connection with the exercise of public functions, in particular political, social and professional functions.
- the use of such an image should be associated with the representation (reporting) of the exercise of professional, social or political functions by the portrayed person.
Article 8 ECHR
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except as provided for by law and necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.
Von Hannover v Germany
The guarantees in Article 8 of the Convention are intended, in the first instance, to ensure the development, without outside interference, of the personality of the individual in his or her dealings with other human beings. There is therefore an area of relationship with others, even in a public context, which falls within the concept of ‘private life’.
Von Hannover - Freedom of Expression
Freedom of expression also extends to the publication of photographs, but this is an area where the protection of the rights and good name of others is of particular importance. It is often not about disseminating ideas, but images containing very personal or even intimate information about a person. In addition, tabloid images are often taken in a climate of constant concern for the individual, which gives rise to a strong sense of assault on private life or even persecution.*
Von Hannover - Publication
The publication of photographs and articles intended to satisfy the curiosity of certain readers as to the details of the private life of an eminent person cannot be considered as a contribution to the debate on matters of public interest, notwithstanding the fact that the person concerned is a well-known person. In these circumstances, a narrower interpretation of freedom of expression is required.
When considering the protection of private life and freedom of expression, it should be determined whether published photographs and articles were part of the debate on matters of general interest.
Mosley v UK
No legal obligation for the press to inform interested parties in advance of its intention to publish on them
Kahn v Germany
The Court held that there had been no violation of Article 8 (right to respect for private life) of the Convention, the applicants – whose faces had not been visible or had been pixelated – could only be identified on the photos through the presence of their parents and the accompanying text and had not been the main subject of the reports, which had focused on their parents’ relationship following their divorce. The Court therefore accepted the finding of the German courts that, in view of the nature of the photos, there had been no call to award additional compensation as the applicants had requested.*
Bogomolova v Russia
The present case concerns the publication of a photograph which, at least by inference, can be seen to suggest that the applicant’s son was an orphan. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 8 of the Convention.
Is it necessary to obtain a consent for image preservation?
Regulations usually do not require consent for image preservation – Example Polish law, German law
Does image preservation violate personal rights?
It can be argued that it violates privacy because the photographed person loses control over the photograph.
Article 81 Protection Under Polish Law
- Distribution of an image requires authorisation of the person presented by that image. Unless distribution has been explicitly forbidden, an authorisation is not required if that person has received remuneration for posing.
- An authorisation is not required to distribute the image of:
• 1) public persons, if the image has been made in association with the public functions held by them, in particular political, social, or professional functions;
• 2) a person being only an element of a larger whole, such as a gathering, landscape, or public event.
