A simple rule in this regard is that authorising the taking of a photo does not include the right to disseminate it.
The right to privacy, a basic principle in terms of image rights, is enshrined in a number of legal texts, including:
It follows from these texts that everyone has the right to object to their image both being taken and published: agreeing to be photographed does not grant authorisation to disseminate photographs in any circumstances.
For practical reasons, it is often impossible to obtain the agreement of all persons appearing in photographs taken in public places.
It is therefore generally accepted that a person may be considered to have given their implicit permission to be photographed simply because they were in a public place. However, the law emphasises that being in a public place, even if it may imply permission to be photographed, does not necessarily constitute consent to the publication of this image. To proceed with such publication, the consent of the person concerned should be obtained.
The right to the image of individuals may conflict with the generally recognised public right to information.
Luxembourg case law takes the position that ‘if it is accepted that the human right to one’s private image is total and that everyone can object to the unauthorised publication of their features, there must be an exception when the published image concerns a person involved in a news event of which he or she is the key actor’ [Court of Appeal, 6 January 2005].
As stated, authorising the taking of an image – explicitly (in writing) or implicitly (e.g. by pausing before a lens) – does not entail authorisation to disseminate. This is even more important today, with the wide use of social media.
In general, the use of online services such as Facebook® is subject to the acceptance of a set of conditions of use, stating that the user is responsible for the content provided.
However, often these sites offer dedicated alert services to report offensive or unauthorised content.
These services can be used to assert image rights.
In light of the above, it is strongly recommended that the consent of an individual be obtained before their picture is taken and (especially) photographs of them are published. For minors, in addition to the subject, the consent of their parents or legal representatives must be obtained.
An alternative solution is to blur the images so that their subjects cannot be identified.
If the provisions protecting privacy are violated, criminal and/or civil penalties will apply. For example, in criminal cases, violation of the provisions of the Law of 11 August 1982 on the protection of privacy is punishable by imprisonment from eight days to one year and/or a fine of 251 to 5,000 euros.
In civil cases, a violation of respect for privacy or image rights results in an order to pay damages and interest. Finally, even where the consent of the person involved (or their legal representatives) has been obtained, it should be noted that:
ANNEXE: AUTHORISATION TEMPLATE FOR PHOTOGRAPHING AND PUBLICISING OF IMAGE (S) OF A MINOR
I, ________, the father/mother/other legal representative (delete where appropriate) of ________ (name and surname of the child), agrees that the child can be photographed during the event _________ (name of the event) as of _________ and that these photographs can be published in the press or for any other non-commercial purpose directly related to the event in question and note that publication does not give the right to remuneration.
Signatures – Child: _________ – Father / mother / other legal representative: _________