User:MichaelMaggs/Sandbox2

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Image taken in a private place and requiring level 2 consent since the subject may be unaware of the photographer (here, provided)

This page sets out some general guidelines to bear in mind when taking pictures of identifiable people that are intended for uploading onto Commons. They do not apply to photographs where the subject is unidentifiable, nor to obvious self-portraits.

The consensus on Commons (subject to any local law to the contrary) is that the subject's consent is not usually needed for a straightforward photograph of an identifiable individual taken in a public place, but is needed for such a photograph taken in a private place.

What does “identifiable” mean?[edit]

The subject of a photograph is “identifiable” when he or she might be recognised in public by a stranger on the basis of the photograph. Normally, that will require that the face be visible, but occasionally there may be other identifying characteristics (unusual tattoos, one arm missing etc). It is not enough that the subject is able to recognise him or herself, nor that an intimate partner might be able to do so (eg on the basis of some characteristic such as a mole which would normally be hidden).

Photographs taken in a public place[edit]

In the United States (where the Commons servers are located), consent is not as a rule required to photograph people in public places. Hence, unless there are specific local laws to the contrary, overriding legal concerns (e.g., defamation) or moral concerns (e.g., picture unfairly obtained), Commons does not normally require that an identifiable subject of a photograph taken in a public place has consented to the image being taken or uploaded. This is so whether the image is of a famous personality or of an unknown individual.

Photographs taken in a private place[edit]

Because of the expectation of privacy, the consent of the subject should be sought before uploading any photograph featuring an identifiable individual that has been taken in a private place, whether or not the subject is named. 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.

What are 'public' and 'private' places?[edit]

For our purposes, a private place is considered a place where the subject can reasonably expect privacy - ie the freedom not to be photographed by unapproved photographers. A public place is a place where the subject cannot reasonably expect privacy. Note that the definition of public place depends on reasonable expectation and not on any personal wish of the subject to avoid being photographed. There may be private places on public land (e.g., a tent on the beach) as well as public places on private land (e.g., a large private party or concert where many people are openly taking photographs).

Does the photographer's presence make a difference? What about a photographer's studio?[edit]

A photographer's studio is a private place where the subject can reasonably expect privacy since there should be no photographers present other than the one the subject knows about. The presence of the photographer who takes the image is dealt with as a matter of consent and does not turn what would otherwise be a private place into a public place. It follows that a posed studio shot always requires the subject's consent even though sometimes that consent may be assumed (see below).

What if it is not clear where the photograph was taken?[edit]

Some photographs have indistinct or nondescript backgrounds that give no clue as to the type of location in which it was taken. In such cases, additional information provided by the photographer or the uploader can be taken into account provided the information appears trustworthy. Where no information at all as to the location is available (eg a portrait by an obscure photographer found on the internet, with foliage in the background), it should be assumed that the location is private. Even then, the image may still be allowed if it is permissable to assume that consent has been given.

What is meant by “consent”?[edit]

Where consent is required under this policy, that implies that the identifiable subject has agreed to the taking of the photograph and has no objections to the photograph being uploaded to Commons.

Does the subject have to waive all Personality rights?[edit]

This featured picture taken in France is considered allowable in even in the absence of consent as it was taken in a public place.

No. Personality rights are legal rights which are available to the subject in some countries to control the way in which the subject’s image is used, especially commercially. Consent, as used on this page, is not a legal issue but a practical device whereby Commons can exclude images that the community considers unfair or intrusive in some way, while still allowing us to retain uncontroversial portraits.

Some countries such as France have strong Personality rights laws which allow an individual significant control over his/her own likeness, even when the photograph was taken in a public place. It has frequently been argued that such images are "illegal" under local law and should not be allowed here. However, consensus to date is that such images are permitted in the absence of any indication that the subject wishes to rely on those Personality rights to have the image removed.

Does the subject explicitly have to agree to commercial use of the image?[edit]

An allowable image where the subject can be presumed to have given consent, but where unauthorised commercial use would still be prohibited in the US due to non-copyright restrictions.

No. It is enough that the subject has no objections to the photograph being uploaded to Commons. Of course, the photographer always has to release the copyright under a free licence which allows commercial use, but there is no need for the subject pre-emptively to sign away his or her rights. There are many images on Commons which cannot be freely used commercially, eg images of copyright-free registered trademarks, and images of identifiable individuals having Personality rights are treated in a similar way. Re-use of any image is always at the re-user’s risk, and Commons gives no guarantee that the image is free of non-copyright legal restrictions on re-use, including Personality rights.

Who has to give consent, when required?[edit]

Consent normally has to be given by the identifiable subject, except where the subject is a minor when consent has to be given by the parent or guardian.

Where consent is required, what evidence is needed?[edit]

That will depend on the circumstances. The more potentially damaging unauthorised release of the image would be to the depicted individual, the greater the efforts we need to make to ensure that the individual has truly consented.

Level 0: Public place - Consent is not normally required[edit]

Low risk of harm. Photographs at this level do not require consent as they have been taken in a public place where the subject cannot reasonably expect privacy. This is subject to there being no relevant moral issues.

Level 1: Private place - Consent can normally be assumed[edit]

Low risk of harm. Photographs in this section are uncontroversial, and their hosting on Commons could not realistically be expected to cause the subject any significant harm, distress or unreasonable embarrassment. If it later becomes evident that the subject did not in fact consent at the time the photograph was taken, the image should be deleted. Examples include:

  • Straightforward uncontroversial shots of an identifiable adult in a private place, such as whole-person, face or head and shoulder images, where it is clear that the subject was aware of and appears to consent to the taking of the photograph (eg by posing).
  • High-quality posed photographs by a professional photographer of an identifiable unclothed or partly unclothed adult professional model in a private place, or such a model with underwear or swimwear. Both the professional nature of the photographer and that of the model must be clear.

Level 2: Private place - Photographer must explicitly state that consent has been obtained[edit]

Medium risk of harm. The hosting on Commons of images at this level might be realistically – without consent - be expected to cause the subject harm, distress or reasonable embarrassment. Examples include:

  • Unposed photographs where an identifiable subject in a private place does not appear to be aware of the presence of the photographer.
  • Straightforward posed shots of an identifiable minor in a private place, such as whole-person, face or head and shoulder images, where it is clear that the subject was aware of the taking of the photograph.
  • High-quality posed photographs by a professional photographer of an identifiable unclothed or partly unclothed subject (not a professional model), or such a subject with underwear or swimwear. The professional nature of the photographer must be clear.
  • Photographs of an identifiable adult in a private place showing any disease or medical condition.

A statement that consent has been provided can be included in the image text, or may be sent to OTRS. Second-hand information (eg where the uploader asserts that the photographer has told him/her that … ) is sufficient for level 2 consents only when the uploader is trusted and known to the Commons community.

Level 3: Private place - The subject or parent/guardian must provide explicit consent[edit]

High risk of harm. The hosting on Commons of images at this level might be realistically – without consent - be expected to cause the subject significant harm, distress or embarrassment. Examples include:

  • Photographs of an identifiable unclothed or partly clothed minor in a private place, or of a minor in any type of sexual pose. (Clearly, this applies only where the image is legal)
  • Photographs of an identifiable minor in a private place showing any disease or medical condition.
  • Unposed photographs where an identifiable unclothed or partly unclothed subject in a private place does not appear to be aware of the presence of the photographer, including underwear and swimwear shots.
  • Intimate photographs (visible anus or genitalia) of an identifiable subject in a private place.

Level 3 consents should be sent to OTRS. Statements of consent that are recorded elsewhere are not sufficient.

Legal issues[edit]

There are a variety of non-copyright laws which may impact on the photographer, the uploader and/or the Wikimedia Foundation, including personality rights, as discussed above, defamation and rights to privacy. In consequence, the commercial use of these pictures may still be problematic if the depicted person does not agree. Even if the Creative Commons License (under which the content is usually published) allows for commercial use, the permission of the photographed person may still be needed in some countries.

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.

Acceptability[edit]

Laws vary from country to country, but the general rule is that an image is definitely unacceptable to Commons if it is illegal, or arguably 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]

Not all legally-obtained photographs of individuals are acceptable to Commons even if they otherwise fall within the project's scope. 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.

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.

Re-use of the image[edit]

Commons images are released under wide licences, but without any guarantee that they are free of non-copyright legal restrictions on re-use, including Personality rights. 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 or for breach of Personality rights. But since neither the photographer, the uploader nor the Foundation have encouraged such 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.

Examples[edit]

No consent was required for this shot as it was taken in a public place

In each case, of an identifiable individual in with no consent given, and assuming no defamation or other legal issues:

Probably OK[edit]

  • An anonymous street performer (public place)
  • An anonymous person in a street scene, especially as part of a larger crowd (public place)
  • Partygoers at a large private party where photography is expected (public place)
  • A basketball player competing in a match which is open to the public (public place)

Probably not OK[edit]

This image is acceptable, even without consent, since this policy applies only to identifiable individuals. A non-pixellated version entitled "An obese girl" was deleted as potentially derogatory
  • A man and woman talking, entitled "Thief and handler of stolen goods" (possible defamation)
  • A child in a fast-food restuarant, entitled "An obese girl" (potentially derogatory/demeaning, possibly not a public place)
  • Long-lens images, taken from afar, of a woman sunbathing on a yacht (unreasonable intrusion, possibly not a public place)
  • A child with a medical condition in a public street (unreasonable intrusion)
  • A child in a school classroom (probably not a public place)

Removal at the request of the subject, photographer or uploader[edit]

Sometimes the subject, photographer or uploader of an image requests that it be removed from Commons, for example because it may cause embarrassment. An image of an individual in a private place should normally be deleted if evidence comes to light that the individual shown did not consent at the time of taking the photograph. In other cases, images are not removed simply because the subject does not like them, but administrators are normally sympathetic to removal requests where good reasons can be given.

Avoiding problems[edit]

It may sometimes be possible to avoid the issues mentioned here, for example by:

  • Anonymizing the image (e.g., by pixellating the subject's face or by cropping it out)
  • Careful choice of title and description
  • Obtaining and recording the consent of the subject
  • Re-taking the picture (e.g., from another angle) so that the subject cannot be identified.