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Right to one´s image in the digital age

Right to one´s image in digital age. Last month we all woke up reading that Spencer Elden, the man who was photographed as a baby on the album cover for Nirvana’s Nevermind, is suing the band. The news ignited the debate about privacy and lawful use of children’s images as today, with the increase of  social media use, children often have digital footprints long before they take their first step.

Like Spencer’s, many other images of children and adults were used with commercial purposes, during the 70s, 90s and early 00’s with and without consent. Some of those cases were taken to the courts, when regulations on the Right to Privacy started to be incorporated in domestic legislations around the world. 

One of the biggest problems of the Internet is that, once our data reaches the network, it no longer belongs to us. Beyond the concessions we make by opening an account on a social network, unfortunately more and more data is being used without our permission.

A study by Photoworld shows that every second 8,796 photos are shared on Snapchat, 4,630 on Facebook and 8,102 are sent via Whatsapp. Many of these images include people in a wide variety of situations. Social networks have thus become a real challenge that we legal professionals face very often. 

The right of one’s own image

The origins of a right to one’s own image in Europe are linked to the first known ‘paparazzi’ case in relation to the Bismarck death photography in 1899. The case led to the passage of one of the first laws of image rights in the German Copyright Act (Gesetz betreffend das Urheberrecht an Werken der bildenden Künste und der Photographie 1907). Since then, ‘consent’ has become the key point of right to one’s own image.

However, the protection of a person’s image is far from being uniform or even harmonised in Europe. In the civil law tradition, the legal protection of one’s own image is based on the right of privacy or on the right of personality, depending on whether the latter is recognised or not. On the other hand, protection of a person’s image in the United Kingdom is not constructed in terms of the recognition of a right, but via the application of the classic torts of breach of confidence and of passing off.

Image and privacy on digital platforms

Privacy and image rights are linked to technology’s evolution of image reproduction. Without the invention of photography and its diffusion, we would not have recognised its importance. Now that videos and photographs are made -more or less- exclusively in digital formats, there is a wider circulation of images, from smartphones to social networks and from social networks to websites and then, images can be downloaded again and modified and reused. 

New technologies have introduced changes in the way we communicate; it has helped us to feel closer to family and friends who live in different parts of the world and also has helped us to keep in touch at times when physical proximity is not possible, as has been the case with the COVID pandemic. 

However, the universalisation of information is making it more challenging to protect the right of privacy. It is also increasing the risk of breaching children’s rights. Indeed, a parent’s own decision to share a child’s personal information online (Sharenting) is a potential source of harm that has gone largely unaddressed.

The general rule is that consent must be given for a specific use and duration, therefore, photographers would be well advised to contract for the specific uses of their photographs before distributing them.

In jurisdictions as Spain, the Organic Law 1/1982 of 5 May 1982 on the right to honour and one’s own image states that it is totally prohibited to take a personal photograph of a third party and publish it without their consent. It does not matter the purpose for which it is taken. Only if the photograph is taken at a public event or of public figures: only in this case will it be allowed and will not be sanctioned. 

The aforementioned law emphasises that it does not matter whether the photograph is published or not; taking the photograph without authorisation is punishable. It is forbidden to take photos of people in the street without a justified reason.

As long as you have the express consent of the employee, there is no problem in doing so. The company must be able to prove that the employee consents to the use of his or her image for commercial or advertising purposes. If the company does not obtain this authorisation and makes use of images of its employees for advertising or commercial purposes, it may be breaching their rights.

What rights do minors have? Sharenting: yes or no

New technologies have introduced changes in the way we communicate; some positive, such as bringing us closer to family and friends who live in other parts of the world and maintaining links at times when physical proximity is not possible, as has been the case with the COVID pandemic. However, sharenting can put your children at risk.  The need to know what limits you have when using your child’s image on social media. What part of your child’s life do you share online? Why do you do it? Who do you share it with? Knowing when it is right to post something on social media is a duty as a parent. 

The term sharenting is used to refer to parents posting what happens to their children on social media. The most popular platforms for doing this are Facebook and Instagram.

The Spanish Data Protection Agency (AEPD) offers data from different studies that prove the importance of this issue. The University of Michigan recently revealed that more than 50% of parents upload photographs of their children that could be embarrassing for them. Another UK study shows that parents have posted an average of 13,000 videos or photos of their children on social networks before the age of 13, while an AVG report warns that 8 out of 10 babies’ images are on the Internet before they are 6 months old.

Sharing images has become a common occurrence. It has transcended the celebrity or sphere and has landed on our doorstep. Not long ago, despite it being explicitly recognized in almost every legal system, the right to the protection of our own image was considered a right only of those people who enjoyed a certain amount of notoriety. Today it is a right that everyone perceives as his own.

Today, when the privacy laws have been developed and widespread to the general public, users are more aware of the limitations on the use of images. In Spencer’s case, the legal team has decided to sue not only based on the lack of consent for the use of his image, but also are alleging that the nude image constitutes child pornography.

With this new layer added to the case, we are not only talking about a transgression against the Right of Privacy of children but also, maybe, a criminal offence. 

Right to one´s image in digital age. By Mónica Navarro, Chief Legal Counsel (Dublin) at del Canto Chambers and Mª Angeles Lorenzo, Head of Communications at Del Canto Chambers Spain

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