It is impossible to imagine our daily lives without social media. Sharing photos seems to have become an everyday activity. Posting photos on platforms such as Facebook, Instagram and Twitter without the permission of the person portrayed is at odds with portrait law and copyright.

Portrait law

Portrait law is a part of copyright law that deals with the protection of a person’s image. In the Netherlands, portrait rights are regulated in the Copyright Act. This right allows individuals to exercise control over the use of their image and prevents unwanted distribution and publication of photographs in which they are recognizably depicted.

Permission and publication

The Copyright Act stipulates that the publication of a commissioned portrait requires the permission of the person portrayed. If the portrait was not commissioned, the person portrayed may object to publication if he or she has a reasonable interest in doing so, such as privacy or commercial interests. An important aspect here is that the person portrayed must be recognizable in the photograph. This means that a photograph in which someone is depicted unrecognizably, for example by editing, is not automatically subject to portrait rights.

Right to privacy

The publication of a photograph without consent may be a violation of the right to privacy. The General Data Protection Regulation (AVG) comes into play here, as a photograph can be considered personal data. The AVG requires that personal data be processed only with a valid basis, such as the data subject’s consent. Unlawful publication can lead to legal action, such as a request for removal or compensation. Moreover, certain photos, for example taken in a private context or revealing sensitive information, may constitute an even more severe invasion of privacy.

Copyright

Copyright protects the creator of a creative work, such as a photograph, by giving him or her exclusive rights to use and distribute that work. Copyright arises automatically when the work is created and does not need to be registered. This means that as soon as a photographer takes a photograph, he or she is automatically the copyright owner of that photograph.

Creator’s permission

When someone takes a photograph, he or she is the copyright holder. This means that others cannot use, publish or edit the photo without permission. Posting a photo on social media without the creator’s permission may constitute copyright infringement. This applies even if the photo was taken by a friend or family member, for example; even then, permission is required for publication on a public platform.

Exceptions and Limitations

There are exceptions to copyright, such as the right to quote and the right to parody, but these are limited and must meet strict conditions. For the use of photos on social media, these exceptions usually do not apply. The right to quote, for example, allows parts of a work to be used for critical or scholarly purposes, provided the source is cited and the use is proportionate to the intended purpose. For private use and artistic freedom, there are also restrictions, but this is usually insufficient to allow photos to be shared without permission.

Case study

Photos of public figures such as top athletes and politicians are more often shared without permission, as they have a lower privacy interest because of their public office. But, even here there are limits, especially if the photos are used for commercial purposes without permission. This distinction is important because use of a portrait for commercial purposes is often judged more strictly than use in a journalistic or artistic context.

Max Verstappen

In 2016, there was an advertising campaign by a supermarket chain that used a doppelganger of Formula One driver Max Verstappen. Verstappen objected to this campaign because the use of his likeness was done without his consent. The court ruled in his favor, arguing that the supermarket chain had unlawfully used his portrait, thus damaging his commercial interests. Even public figures accustomed to media attention can seek protection against unauthorized use of their portrait. Verstappen’s case demonstrates the commercial value of portrait rights for celebrities and how unauthorized use can cause damage, both financially and to their image.

Conclusion

Posting photos on social media without permission from the person portrayed or the creator can have far-reaching consequences regarding both portrait rights and copyright. It is important to always obtain permission before sharing a photo to avoid potential privacy and copyright violations. When in doubt, it is advisable to seek legal advice to avoid possible legal complications and much expense.

Wibe Reddingius