Commons:Photographs of identifiable people
This page is considered an official guideline on Wikimedia Commons.
It illustrates standards or behaviors which most editors agree with in principle and generally follow. Feel free to update the page as needed, but please use the discussion page to propose major changes.
- For the category scheme for people, see Commons:Category scheme People
This guideline sets out some general principles to bear in mind when taking pictures of identifiable people that are intended for uploading onto Commons. The principles apply to photographs of others and do not apply to obvious self-portraits. They also do not apply to photographs where the subject is unidentifiable.
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 usually needed for such a photograph taken in a private place. When required, evidence of consent would usually consist of an affirmation from the uploader of the media. This may be accomplished using the {{Consent}} template.
Consent of the subject (who is a non-public figure) is required even for photographs taken in public places in some countries (see list below).
Subject consent principles
Photographs taken in a public place
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), the Commons community 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.
See however #Country-specific consent requirements below.
Photographs taken in a private place
Because of the expectation of privacy, the consent of the subject should normally 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.
See also #Country-specific consent requirements below.
What are 'public' and 'private' places?
For our purposes, 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). This general principle is a good starting point when gauging whether the Commons community is likely to require that the consent of the subject should be obtained before uploading.
As always, of course, if there are any local laws which control the taking of photographs, or the use that may be made of them without the subject's consent, those will take precedence.
Legal issues
There are a variety of non-copyright laws which may affect the photographer, the uploader and/or the Wikimedia Foundation, including defamation, personality rights and rights to privacy.
Consent and personality rights
In some countries the subject's consent is needed for publishing images taken in a private place. In some countries the subject's consent is needed for just shooting a picture, to publish it and/or to use it commercially even if the person is in a public place. See #Subject consent principles above.
Even if subject consent is not legally required to take a photograph, the commercial use of pictures taken in a private place may still be problematic if the depicted person does not agree. Even if the copyright license allows for commercial use (which is required for an image to be in the scope of Commons), the permission of the photographed person may still be needed in some countries. On the file page, the {{Personality rights}} template should be used to convey this information.
Country-specific consent requirements
In a number of countries consent is needed for just shooting a picture, to publish it and/or to use it commercially even if the person is in a public place. The following is a list of countries where consent is needed for one or more of the mentioned situations.
This list is incomplete: Just because a country isn't listed here, it does not reflect a fact that everyone is free to take/publish/commercially use pictures of people in public spaces in that country.
| Country/Territory | Take a picture | Publish1 a picture | Commercially2 use a published picture |
|---|---|---|---|
| Afghanistan | No | Yes (with exceptions) | Yes (with exceptions) |
| Argentina | No | Yes (with exceptions) | Yes (with exceptions) |
| Australia | No (with exceptions) | No (with exceptions) | Yes |
| Austria | No (with exceptions) | No (with exceptions) | Yes |
| Belgium | No | Yes (with exceptions) | Yes |
| Brazil | Yes | Yes | Yes |
| Bulgaria | No | No | Yes |
| Canada | Depends on province | Yes (with exceptions) | Yes |
| China, People's Republic of | No | No | Yes |
| China, Republic of | No | No (with exceptions) | Yes |
| Czech Republic | Yes (with exceptions) | Yes (with exceptions) | Yes (with exceptions) |
| Denmark | No | Yes (with exceptions) | Yes (with exceptions) |
| Ethiopia | No | Yes (with exceptions) | Yes |
| Finland | No | Yes (with exceptions) | Yes (with exceptions) |
| France | Yes (with exceptions) | Yes (with exceptions)[1] | Yes |
| Germany | No (with exceptions) | Yes (with exceptions) | Yes (with exceptions) |
| Greece | No | No | Yes (with exceptions) |
| Hong Kong SAR | Depends on circumstances | Depends on circumstances | Depends on circumstances |
| Hungary | Yes (with exceptions) | Yes (with exceptions) | Yes (with exceptions) |
| Iceland | No | No (with exceptions) | Yes |
| India | No | No (with exceptions) | Yes (with exceptions) |
| Indonesia | Yes (with exceptions) | Yes (with exceptions) | Yes (with exceptions) |
| Iran | No (with exceptions) | No (with exceptions) | No (with exceptions) |
| Ireland | No (with exceptions) | No (with exceptions) | No (with exceptions) |
| Israel | No | No (with exceptions) | Yes |
| Italy | No | Yes (with exceptions)[2][3][4] | Yes[5] |
| Japan | Yes (with exceptions) | Yes (with exceptions) | Yes (with exceptions) |
| Libya | No | Yes (with exceptions) | Yes |
| Macau SAR | Yes (with exceptions) | Yes (with exceptions) | Yes (with exceptions) |
| Mexico | No | Yes | Yes |
| Netherlands | No | No (with exceptions) | No (with exceptions) |
| New Zealand | No | No | Yes |
| Norway | No | Yes (with exceptions) | Yes (with exceptions) |
| Peru | No | Yes (with exceptions) | Yes (with exceptions) |
| Philippines | No | Yes (with exceptions) | Yes |
| Poland | No | Yes (with exceptions) | Yes |
| Portugal | No (with exceptions) | Yes (with exceptions) | Yes |
| Romania | No | Yes (with exceptions) | Yes (with exceptions) |
| Russian Federation | No | Yes (with exceptions) | Yes (with exceptions) |
| Singapore | No (with exceptions) | No (with exceptions) | No (with exceptions) |
| Slovakia | Yes (with exceptions) | Yes (with exceptions) | Yes (with exceptions) |
| Slovenia | No | No | Yes |
| South Africa | No | No | Yes |
| South Korea | Yes (with exceptions) | Yes (with exceptions) | Yes (with exceptions) |
| Spain | Yes | Yes | Yes |
| Sweden | No | No | Yes |
| Switzerland | Yes | Yes | Yes |
| Turkey | Yes (with exceptions) | Yes (with exceptions) | Yes (with exceptions) |
| United Kingdom | No (with exceptions) | No (with exceptions) | Yes |
| United States | No | No | Usually (although laws differ by state) |
| 1:In this context of consent requirements, "publish" refers to "making public" and is separate from the term "publish" as may be defined elsewhere (e.g. U.S./U.K. copyright law).
2:In this context of consent requirements, "commercial use" is separate from, and not in reference to, licensing conditions that may prohibit commercial use (non-commercial licenses). Often commercial use in this context is contrasted with "editorial use", with the former referring to advertising and marketing purposes and the latter referring to news reporting and education even if made with a profit motive. | |||
See Commons:Country specific consent requirements for details, or follow a country's link in the above table.
Defamation
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.
Legality
These 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
Moral issues for Commons uploads
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.
See also #Subject consent principles above.
Moral issues arising from reuse of images outside Commons
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.
Guidance for compliance with these principles
Examples
In each case, of an identifiable individual with no evidence of consent given, and assuming no defamation or other legal issues:
Normally OK
- An anonymous street performer
- An anonymous person, in a public place, especially as part of a larger crowd
- Partygoers at a large private party where photography is expected
- A basketball player competing in a match which is open to the public
Normally not OK
- A man and woman talking, entitled "A prostitute speaks to her pimp" (possible defamation)
- An identifiable child, entitled "An obese girl" (potentially derogatory or demeaning)
- Partygoers at a private party where photography is not permitted or is not expected (unreasonable intrusion without consent)
- Nudes, underwear or swimsuit shots, unless obviously taken in a public place (unreasonable intrusion without consent)
- Long-lens images, taken from afar, of an individual in a private place (unreasonable intrusion)
Consent template
If you would like to proactively assert compliance with these guidelines for a particular photograph or video, you can add the {{Consent}} template to the file's description page. Please refer to the template documentation for further instructions. Use of this template is not required for compliance with these guidelines or other Commons policies.
Can an image be made allowable by adding the {{Personality rights}} template?
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.
Avoiding problems
It may sometimes be possible to avoid the legal and moral 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.
Removal at the request of the subject, photographer or uploader
Sometimes the subject, photographer or uploader of an image requests that it be removed from Commons, for example because it may cause embarrassment. Generally, 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.
See also
- Issues involving living people in WMF's BLP resolution
- WMF's May 2011 resolution regarding subject consent for images of identifiable living people
- Commons:Patient images – on issues relating to medical images of identifiable people
- Personality rights – essay on legal issue
- Nonphotographs, video, and inaccuracies – essay on legal applicability of guideline to other than accurate still photos (like drawings, moving images, likenesses, and confusingly inaccurate media)
External links
Personality rights
- personalityrightsdatabase.com, from the University of Edinburgh
Photography in public places
The following websites discuss the rights of photographers taking photographs in public places:
- Australia (NSW) - Australian street photography legal issues
- Canada - Canadian Photographers Coalition on Canadian Copyright Legislation
- Canada - Photography laws
- Czech Republic - Using photographs in advertising, Legality of monitoring of people, Recording policemen on duty
- Germany - Recht am eigenen Bild
- New Zealand - Unlawful Photography in Public Places: the New Zealand Position
- UK - Photographers Rights Guide v2 (archive version) by Linda Macpherson LL.B, Dip. L.P., LL.M (a freelance legal consultant specialising in Media Law and Intellectual Property Law). See forth column in the PDF.
- US - A Downloadable Flyer Explaining Your Rights When Stopped or Confronted for Photography and Photographers' Guide to Privacy (1999)
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- ↑ Laurent, Olivier (23 April 2013). "Protecting the Right to Photograph, or Not to Be Photographed". The New York Times. Retrieved on 15 February 2015.
- ↑ Italy, Street-Photography and the Law (29 October 2013). Archived from the original on April 13, 2016. Retrieved on 15 February 2015.
- ↑ Monti, Andrea. Italian Law & Street Photography / What are you allowed to shoot?. Archived from the original on March 17, 2017. Retrieved on 15 February 2015.
- ↑ Art. 97. Legge 22 aprile 1941 n. 633 - Protezione del diritto d'autore e di altri diritti connessi al suo esercizio (G.U. n.166 del 16 luglio 1941) / Testo consolidato al 6 febbraio 2016 (DLgs 15 gennaio 2016, n. 8). Retrieved on 2020-05-05.
- ↑ Art. 96. Legge 22 aprile 1941 n. 633 - Protezione del diritto d'autore e di altri diritti connessi al suo esercizio (G.U. n.166 del 16 luglio 1941) / Testo consolidato al 6 febbraio 2016 (DLgs 15 gennaio 2016, n. 8). Retrieved on 2020-05-05.