Commons:Photographs of identifiable people/2013

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Scope[edit]

  • Identifiable: This policy applies to identifiable people; it is not limited to people identifiable by looking at the image out of context. People may be identifiable by many means, including clues surrounding the origin of the image, especially if uploaded from external websites. The greater the privacy issues with a image, the more weight should be given to the risk of identification by such non-obvious means.
  • Living: This policy applies primarily to identifiable living people. However, where the image shows the subject in a negative light and the subject is recently deceased we may consider some of the moral issues mentioned and decide whether hosting the image is the right thing to do. In addition, it should be noted that in some jurisdictions certain personality and related privacy rights may be inherited and persist for some time after death.
  • All media: Although the policy primarily concerns photographs, it extends to all media, including audio recordings and video.

Legal issues[edit]

  • subject consent
  • defamation
  • personality rights
  • legality of the image

Subject consent[edit]

The consensus on Commons is that

  1. Private place: For photographs taken in a private place: subject consent for publication is always required
    • This is often the legal requirement, but it is Commons policy to require consent in these situations even where local laws do not require it.
  2. Public place: For photographs taken in a public place, local laws on subject consent (local to the location where the photograph was taken) are respected.
    • In many countries, subject consent is required for publication of photographs taken in public, at least in some situations. Where subject consent is not required for photographs taken in a public place, Commons does not require consent either.
  3. Evidence: When consent is required, evidence of this would usually consist of an affirmation from the creator of the media that consent was obtained. This may be accomplished using the {{consent}} template. Evidence of (re)publication by the subject or with the subject's consent may also be used. Direct communication with the subject is encouraged in the case of uncertainty.
  • For guidance on local consent requirements in different countries, see Commons:Country specific consent requirements.
  • For definitions of "public place" and "private place", local legal definitions will be used if known. Note that the concepts refer to expectation of privacy, not to ownership. In general, a private place can be considered a place where the subject has a reasonable expectation of privacy; and a public place is a place where the subject has no such expectation. Note that there may be private places on public land (such as a tent on the beach) as well as public places on private land (like at a large private party or concert where there is generally no expectation of privacy when many people are openly taking photographs, or there are TV crews covering the event).

Defamation[edit]

You should bear in mind that defamation may arise not only from the content of the image itself but also from its description and title when uploaded. An image of an identified unknown individual may be unexceptional on its own, but with the title "A drug-dealer" there may be potential defamation issues in at least some countries.

Personality rights[edit]

Personality rights exist in many countries as non-copyright restrictions on the reproduction of images of people without the subject's consent. These restrictions typically depend on a number of factors, and whether such restrictions apply to a particular intended use can often only be evaluated on a case-by-case basis, taking into account the intended use and the applicable local laws.

Personality rights are generally considered to consist of two types of rights: the right of publicity, or to keep one's image and likeness from being commercially exploited without permission or contractual compensation, which is similar to the use of a trademark; and the right to privacy, or the right to be left alone and not have one's personality represented publicly without permission.[1]

Under these principles,

  1. subject consent may be required merely to take or publish a photograph (see #Subject_consent)
  2. even if subject consent is not legally required merely to take or publish a photograph, some types of commercial use of images may still require the depicted person(s) to agree to that specific use.[2]
  3. Similarly, where subject consent for general publication has been obtained, this does not necessarily mean that the image can be used for any purpose; certain commercial uses may still require specific consent for those uses.

On the file page, the {{Personality rights}} template should be used to convey information warning of such possible Non-copyright restrictions applying to reusing content outside Wikimedia. The exception is for files falling under point 1 above, where subject consent is required for merely taking or publishing images and such consent has not been obtained: such files should be deleted.

Can an image be made allowable by adding the {{Personality rights}} template?[edit]

No. The {{Personality rights}} template has nothing to do with the allowability or otherwise of an image under these rules. Its purpose is simply to warn re-users of Commons’ content that local laws may impose additional requirements on re-use, over and above those that we enforce here. If a photograph fails the rules on this page it must be deleted, and it is never a valid argument that adding a {{Personality rights}} template will allow it to be kept.

Legality[edit]

An image is definitely unacceptable to Commons if the image itself is illegal, or likely 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).

Moral issues[edit]

Shortcut
COM:MORAL

Moral issues for Commons uploads[edit]

Not all legally-obtained photographs of individuals are acceptable to Commons even if they otherwise fall within the project's scope. 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. The following types of image are normally considered unacceptable:

  • Those that unfairly demean or ridicule the subject
  • Those that are unfairly obtained
  • Those that unreasonably intrude into the subject's private or family life

These are categories which are matters of common decency rather than law. They find a reflection in the wording of the Universal Declaration of Human Rights, Article 12: (No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation).

The extent to which a particular photograph is "unfair" or "intrusive" will depend on the nature of the shot, whether it was taken in a public or private place, the title/description, and on the type of subject (e.g., a celebrity, a non-famous person, etc).

This is all a matter of degree. A snatched shot of a celebrity caught in an embarrassing position in a public place may well be acceptable to the community; a similar shot of an anonymous member of the public may or may not be acceptable, depending on what is shown and how it is presented.

See also #Subject consent above.

Moral issues arising from reuse of images outside Commons[edit]

Commons images are released under wide licences, but without any guarantee that they are free of non-copyright legal restrictions on re-use. Someone re-using in a derogatory manner an unexceptional Commons image of an identifiable subject might run the risk of the subject suing for defamation. But since neither the photographer, the uploader nor the Foundation have encouraged such defamatory use, the image itself is still perfectly acceptable to Commons. The fact that a photograph is capable of being misused does not mean, in itself, that it is objectionable here.

Putting something under the public domain or a free license does not open the door for abuses of the right of publicity or defamation on-wiki or off-wiki. These acts are just as illegal as they would be otherwise, no matter the copyright status of the image. For instance, abusive re-uses of US government images are legally actionable, even though the images are in the public domain.

References[edit]

  1. Personality rights
  2. All Commons files need at least one copyright license which allows for commercial use; this copyright requirement is quite separate from personality rights issues.

See also[edit]