Commons:Photographs of identifiable people/Update 2013/Legal issues
 Scope Review 2013 links:
Discuss stage 2 of this review Translation Background Links to current rules Discussion: Introductory Scope wording Discussion: Files Discussion: Pages, galleries and categories Discussion: Areas of particular concern Discussion: Identifiable people Other proposals |
Legal issues[edit]
There are two forms of personality rights that govern the taking, hosting and use of photographs where the subject is a living person: the right of publicity and the right of privacy. Care should also be taken not to defame the subject.
An image is 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).
The {{Personality rights}} template may be used to warn re-users of Commons’ content that local laws may impose additional requirements on reuse, over and above those enforced here. Laws both where the photo is taken and where it is published should be taken into account.
The right of publicity[edit]
The right of publicity is the right to control the commercial use of one's likeness. The most obvious example of this is advertising (whether or not the advertisement is for commercial purposes). This right concerns the subject of the photograph and is distinct from the photographer's copyright licence which may impost its own terms or grant freedoms regarding commercial reuse. All images hosted on Commons must allow free commercial reuse from a copyright point-of-view, but the subject of the photograph may still refuse permission or demand payment for such reuse. This right does not affect the hosting of an image on Commons; might rarely affect the use of an image on a Wikimedia project; and is most likely to affect commercial re-users. In some countries and states, the right of publicity may persist for some time after death.
The right of privacy[edit]
The right of privacy is the right to be left alone and not to be made the subject of public scrutiny without consent. The right to privacy is enshrined in several international laws though the details with regard to photographs vary from country to country. Images must not unreasonably intrude into the subject's private or family life.
The law on privacy concerning photographs can be crudely divided into whether the photograph was taken in a private or public place. A private place is somewhere the subject has a reasonable expectation of privacy and a public place is somewhere where the subject has no such expectation. The terms are unrelated to whether the land is privately or publicly owned. For example, a tent on a beach is a private place on public land and a concert is a public place on private property. A place may be publicly accessible but still retain an expectation of privacy concerning photography, for example a hospital ward during visiting hours. Whether the place is private or not may also depend on the situation at the time: for example that same hospital ward would have been a public place during a tour before it opens.
In the United States (where the Commons servers are located), consent is not as a rule required to photograph people in public places and publish those photos. 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.
In many countries the subject's consent is needed to just take a picture, and/or to publish it and/or to use it commercially even if the person is in a public place. Further nuances may include the age of the subject, what the subject is doing at the time, whether the subject is famous, whether the image concerns news of public interest, etc. See Commons:Country specific consent requirements for details.
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.
Proportionality[edit]
In some countries, proportionality (fair use) is the main legal criterion of all exceptions. That means usual practices are admitted and tolerated by the law.
Defamation[edit]
Images must not unfairly ridicule or demean the subject. This may result simply from the content of the image but can also arise by poor choice of title, description or category. Defamation is both a legal and moral issue; therefore, Commons does not base decisions on whether the subject is able or likely to sue.
Employees[edit]
If the photographer is employed while taking photographs, their actions may be subject to their employment contract or the rules of their professional body. For issues concerning medical staff and photographs of patients, see the essay Commons:Patient images.