Photo and video reportage of even the smallest events, travels and conferences is now standard practice. Materials of this type are willingly placed on websites and social media profiles. However, a question arises, whether the publication of the image of the participants of such events is always legal?
The above issues are regulated by Article 81 of the Copyright and Related Rights Act. It follows from this provision, that the principle of the dissemination of an image, requires the consent of a given person. The authorization is not required only in the case of
– a person commonly known during the performance of his/her public functions,
– a person who represents only a detail of a larger whole – such as an assembly, landscape or public event.
When consent is not required?
The first exception applies to commonly known people (e.g. politicians, actors, musicians) who officially appear at events, e.g. by posing on “walls”, being invited in work related circumstances or representing specific environments. In other cases (e.g. a date with a spouse in a theatre audience) they shall exercise their right to protect their image as any other citizen and, as a general rule, their image cannot be published without permission. What also seems to be important, even if the celebrity takes part in the event officially, without permission his/her image may be used for broadly understood reporting purposes. However, this does not mean that the image may be used e.g. in advertising for the next edition of such an event.
The second exception is designed to allow us to take pictures of the audience in which the foreground characters cannot be distinguished. The application of this exception is determined not so much by the number of people shown in the photo as by its character. If a photograph shows a crowd (including people who can be recognized), but at the same time it lacks people who “stand out” from their surroundings, becoming the main subject of such a photograph, it may be published. To define that, a simple test can be conducted – to imagine the same photograph without the image of a particular person. If such a change objectively does not have a significant impact on photography, it means that the person is an element of the background. As in the first case, this exception applies only to reporter publications. The use of the image for advertising purposes on this basis is excluded.
When none of the above exceptions is in force, to use the image of people appearing on the photos taken during the event, it is necessary to obtain their consent. Fortunately, the Law is kind to the organizers in this respect and does not require any special form of consent. This means that the consent can be given e.g. verbally or even implicitly and can be deduced from the behavior of the person and the context of the situation. This applies in particular if someone has received payment for posing. On the other hand, posing does not necessarily imply consent to the subsequent dissemination of an image. It cannot be concluded unequivocally that it was tantamount to being aware of the extent to which the images will be used in the future.
Permission as part of the Regulation
Recently, a practice has developed whereby consent for the dissemination of the image is included in the regulations of the event – made available for inspection or acceptance by its participants. Such a concept cannot be regarded as erroneous in advance, but undoubtedly it should be applied with a certain degree of caution. First of all, the regulations must specify in detail who and to what extent will disseminate the image of guests. If the regulations include agreement concerning the dissemination of the image, it is strongly recommended to require its explicit acceptance by the participants, and not only to make the regulations available, e.g. on a website that not everyone can reach. Moreover, in each such case, it is recommended to use further information materials in addition to the rules and regulations, e.g. a notice informing about recording and disseminating relations with the event in a specific medium (placed at the entrance to the event area).
It seems that such a model is acceptable if the participants can expect exactly the same publicity as described in the Rules of Procedure. Therefore, if a person goes to an event organized or sponsored by a television station and the regulations and announcements at the entrance indicate that the event will be broadcast on the air, it is hard to say that any dissemination of the image of the participant took place without the participant’s knowledge and consent. On the other hand, if a participant is invited to a banquet of a private company, and the regulations, discreetly located at the entrance, provide that participation in this event means to consent to place his or her image in advertisements for the products of this company, without any limitations as to the time, place and form of dissemination, it is difficult not to consider it an abuse and a kind of extortion of unintentional consent of the participant.
Image as a category of personal data
Let us not forget that an image may sometimes be treated as a category of personal data and may be subject to the regulations of GDPR. GDPR applies only if the data subject is identifiable by the data controller. Usually, it will be the organizer of the event. As far as the possibility of individual persons and situations identification is concerned, various kinds of ambiguities may often arise. Therefore, it is the best practice for the organizer, even “just in case”, to comply with the requirements of the GDPR, i.e. to include appropriate clauses in the regulations and to apply announcements before entering the event area, which has already been mentioned.
Withdrawal of consent
Despite the measures and principles described above, it should be borne in mind that a participant’s consent to the dissemination of his or her image may be withdrawn. This also corresponds to the analogous right of the GDPR to object (or to withdraw consent) in the area of personal data. In principle, this right cannot be called into question. Therefore, if the organizer has not concluded a separate contract with the person concerned in which he has secured himself against such a scenario, e.g. by contractual penalties, the withdrawal of consent can be done without any requirements and consequences for the participant.
What about the image of the children?
Photography of children may also be a problematic topic for the organizer. It follows from the law that the consent to disseminate the image may be granted only by a person over 13 years of age, and in the case of very broad or controversial consents, an even higher age limit may be considered. If these requirements are not met, parental consent is required. It often happens that the organizer does not know at what age the child is, whose image has been captured in the photo and whether the child participated in the event with the consent and knowledge of the parents. Therefore, children’s photos should be distributed with great caution – only if you are sure of all the above-mentioned circumstances.
At the same time, it should be emphasized that the current jurisdiction of the courts seems to favor those whose image is being exploited. Therefore, in case of any doubts, it is worth considering whether the organizer’s plans for using the image of the participants are not too far-reaching. If the doubt cannot be eliminated, it is worth trying to obtain a clear, unambiguous consent of the participant (expressed in writing or, for example, by e-mail). In order not to expose yourself to the risk of litigation and the need to pay compensation or other costs, which can range from a few to even tens of thousands of zlotys.
The article appeared in “Think MICE” magazine.