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Photo by John Kinnander on Unsplash
Thanks to the significant commercial impact of social networks, photos and videos have become a common way of communicating and sharing information. In the blink of an eye, an image can be seen by thousands of people around the world.
While this may seem like a good thing, it also raises concerns about privacy and respect for individual rights. With the proliferation of images online, it is becoming increasingly difficult to control access to our photos and to control how they are used. Images can be modified, shared without permission or used for malicious purposes. This can damage our reputation, our privacy and even our safety. That's why it's essential to understand that everyone has the right to control their image. Image rights are a legal concept that allows individuals to control the use of their image and protect their privacy.
The General Data Protection Regulation (GDPR), which came into force in 2018, has helped to strengthen and formalise people's rights over their personal data, obviously including photos and videos in which people appear. Against this backdrop, it is important for businesses and organisations to understand the rules for using images of their employees and third parties in their ecosystem. Whether for group photos, professional portraits or presentation videos, it is essential to obtain the informed consent of the people concerned and to respect their right to image.
In this article, we'll explore the concept of image rights, how they relate to the RGPD and the rules you need to follow to use data subjects' images ethically and legally.
Image and privacy
Article 9 of the French Civil Code establishes the fundamental right of every individual to privacy. This right enables everyone to control the disclosure of personal information and, by extension, to protect their image. The right to an image is therefore part of the right to respect for private life and enables each person to decide whether or not to authorise the reproduction and public dissemination of his or her image. This right belongs to the person concerned, or to their legal representatives if they are a minor, and can take various forms, such as photographs, films or videos.
To use and distribute an image in which a person is recognisable, it is essential to obtain the person's precise written agreement, for example in a document assigning image rights. This rule applies in various situations. For example, if the image is taken in a private place, the consent of the person concerned is required if they are recognisable in the photo. If the image is taken in a public place, permission is required if the person is isolated and recognisable.
Image and personal data
Since May 2018, the GDPR considers the image of an identifiable person as personal data. Therefore, you have the right to protect your image as personal data. It should be remembered that personal data is any information relating to a natural person who can be identified directly or indirectly.
The collection and processing of a person's image are subject to the same rules as apply to other personal data. In this case, the legal basis for collecting an image is the explicit consent of the person concerned, before publishing or using their image.
To obtain the rights to a person's image, you must :
Draw up a consent document detailing the conditions for using the image.
What medium will be used? Who will be the recipients? What is the purpose of the image and how long will it be kept?
Have this document signed by the person concerned
Or by their legal representatives if the person is a minor.
Keep the signed document for as long as the image is to be used.
It must be kept as proof of consent.
Inform the person concerned of the possibility of withdrawing consent easily and at ANY time.
The right to withdraw consent is a fundamental aspect of the protection of personal data; consent cannot be irrevocable.
Stop using the image if consent is withdrawn.
This does not have retroactive effect. Uses prior to the withdrawal of consent are not affected. However, no new use is possible.
Delete the images available in your storage if the person exercises their right to erasure.
Withdrawal of a previous publication can only be requested if it turns out that this use does not comply with the consent. The form must inform the individual of his or her rights of rectification, opposition, deletion and access to the data collected.
It is important to note that consent must be sought again if the image is re-used for a purpose other than that initially set out in the transfer of image rights.
The importance of assigning image rights
As an organisation, it is essential to comply with the regulations mentioned above to avoid the penalties provided for by law in the event of a violation of image rights. Particular attention must therefore be paid to the image rights of the people concerned.
It is important to inform your employees of their image rights and of the rules applicable within the company, by including this information in the internal regulations or the confidentiality policy intended for employees.
Before using an employee's image, either internally or externally, you must obtain their written consent.
It is essential to allow your employees to refuse or withdraw their consent at any time.
It is also forbidden to punish an employee who refuses to allow his or her image to be used, or to make the signing of his or her contract conditional on the assignment of his or her image rights. In this case, the request for consent would not be free consent, as required by law.
By complying with these rules, you can use your employees' images ethically and legally, while preserving their image rights and privacy.
Respecting your employees' image rights contributes to a good social climate within the company.
Limits to image rights
However, there are some exceptions to these notions of image rights. Image rights may be limited to ensure respect for the right to information, freedom of expression and artistic and cultural freedom, or for reasons of public or scientific interest.
In these specific cases, consent is not required to distribute certain images, provided that the dignity of the person is respected and that their image is not used for commercial purposes.
For example: Images of a news event or public demonstration within the limits of the right to information and artistic creation.
Photographs of crowds where people are not the central subject do not infringe image rights. The same applies to public places where individuals are not recognisable.
However, if a person is isolated and identifiable in a crowd or public place, his or her agreement is required before publication.
It is strongly recommended to clearly inform people that they are likely to be photographed or filmed, at the entrance to an event for example.
Penalties for non-compliance
Violations can have serious legal consequences.
Photographing or filming a person in a private place, or transmitting their image without their consent, is considered an invasion of privacy and is punishable by one year's imprisonment and a €45,000 fine. Similarly, publishing the photo or video without the person's consent is punishable by one year's imprisonment and a €15,000 fine.
These severe penalties reflect the importance of protecting the image rights and privacy of individuals. In the event of a violation of image rights, the individuals concerned may also take legal action to seek compensation for the damage suffered. This may include damages for invasion of privacy, moral prejudice or professional prejudice.
As an organisation, it is your responsibility to respect these rights and to take the necessary steps to obtain the free and informed consent of the people concerned before using their image.
Beyond the legal risks, good management of image rights contributes to your company's brand image and ethical standards.
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