Image protection online

Online you’ll find various types of photos immortalizing someone's image.

When can we use them? Do we always need the consent of the person immortalized in the photo?

Sandra Mościcka - Wójciak legal adviser, co-author of the blog will answer these questions in today's article.

The issue of image protection is regulated in Polish law by two legal acts - the Civil Code and the Act on Copyright and Related Rights.

In the Civil Code, the image is included in one’s personal rights and is subject to the same protection as e.g. health or freedom.

A person whose image has been unlawfully disseminated may demand under the provisions of the Civil Code to refrain from dissemination, to remove the effects of the violation, as well as to make an appropriate statement by the infringer. In the event of a culpable act, a person whose image has been disseminated without the required permit may also demand an adequate sum of money as compensation for the harm suffered or an appropriate sum of money for the indicated social purpose.

Image protection in copyright

According to art. 81 section 1 of the Act on Copyright and Related Rights, the rule is that the dissemination of the image requires the permission of the person presented on it.

There are, however, several cases in which this consent is not needed.

Posing for photos for remuneration

The first situation when consent to the dissemination of the image is not needed is posing for photos for a fee. If the model has received the agreed amount for posing, it is presumed that they gave permission to share their image captured during the photo session.

It is not, however, that always whenever a model receives payment for posing, this consent is not needed. The provision states that "in the absence of an express reservation, permission is not required if the person has received the agreed payment for posing". It may be such a situation that the contract with the model clearly stipulates that, despite the payment received, such consent is needed.

The model can also always say that they agree to share their image only in certain places, e.g. only on the photographer's website, and not on social media such as Facebook or Instagram. That is why it is worth making sure to determine it at the very beginning and construct such a contract that will determine the time and scope of use of the model's image.

An image of a well-known person

The second case where we do not need permission to share the image is to distribute photos of a well-known person, if the image was taken in connection with performing public functions, in particular political, social and professional.

Copyright does not define the concept of a well-known person. A commonly known person can be a politician, actor, singer, journalist, but not only. As a rule, a well-known person cannot object to the publication of his image if it was made in a relationship performing public functions, in particular political, social and professional.

However, if the picture was taken in a private situation, e.g. while shopping, walking or socializing, such consent will be needed.

Group photos

The last situation in which it is not mandatory to obtain consent for the dissemination of the image is to consolidate the image of a person who is only a detail of the whole, such as an assembly, landscape, public event.

If you have a photo of an event and want to publish it online, you can do it without the consent of the people presented on them, but only on the condition that the people placed on them will be only part of the whole. A single person may not be the main topic of photography, but part of this event, which in itself is the main theme of the presentation of a given photo.

You also do not need permission to share the image placed in the picture, which shows the landscape, and the person appears on it only "by the way". An example of such a photo is a photo of the building, which also shows passers-by located in front of this building. In this situation, the building is the leitmotif of the photo, and the people placed on it are only a detail of this place and it is not necessary to receive permission from them to share their image in this photo.

Form of consent for image dissemination

The Copyright and Related Rights Act does not impose any requirements as to the form of consent to the dissemination of the image. It may be expressed either orally or in writing as well as in electronic form. Consent can be expressed through any behavior that reveals the will of the person sufficiently. To protect your own interests, however, you should collect such consent in writing.

The consent to use the image must be expressed, however, with the awareness of the consequences arising from it and should refer to the specific ways and circumstances of using the image. In other words, the person expressing consent must know to what extent the image will be used.

Image as personal data

According to the definition of personal data contained in the GDPR, the image is considered to be personal data, therefore it is protected on the principles contained in this legal act. As we capture the image of a person, we begin to process their personal data.

So, do we need consent for the processing of personal data in a situation where it is clear from the copyright that this consent is not necessary? In some situations, yes. Since permission to share the image from copyright is not the same as consent to the processing of personal data from the GDPR, it should be taken care of separately. The same applies to the information obligation. Consent to the processing of personal data, however, is not necessary in every case, and the legalizing premise for the processing of this data may also be Art. 6 (1)(f) GDPR - the necessity of processing for purposes resulting from legitimate interests pursued by the administrator.

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