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The image right is a right (developed by jurisprudence and
doctrine), which requires the prior permission of someone in order
to take or use his image.
Hence, before taking a photo or a video of someone, basically
his permission must be asked. If you want to use these photos or
videos (for example, for publication on the Internet or in a
newspaper) afterwards, permission needs to be asked again. After
all, permission to take someone's photograph does not
automatically imply the permission to use it. This authorization
must be obtained separately.
However, when someone is in a public place, his picture can be
taken without his explicit consent. There are several trends in the
jurisprudence, but the majority agrees on the principle that when
someone is in a place - accessible to the public - he has given
tacit approval to be photographed.. Regarding the authorization for
the use or reproduction of an image or video, it depends on
whether the person concerned is portrayed rather accidently or
whether he is the main subject of the picture. If the person in
question is the main subject of the photo and / or video, prior
authorization is required before its use. In case his presence in
the picture or video is merely incidental, his permission to use
his image is in principle not required . This implied consent (both
for making as for using the photograph) will also be assumed if the
person in question is part of a crowd, where no single person is
dominantly featured. In order to determine whether there is a
"crowd", the court applies a case-by-case approach. It is
important to note that, if it would concern a photo where the
background is less important, permission needs to be obtained yet
again.
Regarding the pictures taken in a closed circle (for example,
during a group activity at work), a distinction is made whether
they are focused on a certain individual or not. A focused image is
an image in which one or more persons are visibly recognizable or
when someone in fact posed for a photograph. Non-targeted images on
the other hand are considered to be atmospheric pictures or
photographs in which people accidently appear, and thus without an
obvious focus on somebody in particular.
Regarding focused pictures, the prior consent of the person
concerned is required before both taking as using the photograph.
He has the right to know how the images will be disseminated
(internally or externally, on the Internet, via an Intranet, in a
newspaper, brochure, etc.) as well as the underlying reason or
purpose behind these photographs. He must also be informed of his
right to information, access and opposition regarding the captured
images.
With regard to non-targeted images, no authorization is required
and it suffices to inform the person concerned that pictures will
be taken, for what purpose and for what publication. Shooting
non-targeted photographs (ambience pictures of an activity or a
group picture) is something that participants can expect. However,
when these images will be used for advertising purposes, it no
longer falls within normal expectations. Therefore, if the person
in question can be clearly identified, his consent must be obtained
in order to use the pictures for this particular purpose.
It should also be noted that this authorization is not required
when the use of the image is required for the organization of work
(identification). This follows from the law of 1992 on the
protection of privacy with regard to the processing of personal
data. The best example here is the publication of photos of
employees on the intranet in a so-called "portrait
gallery" or for an identification badge.
In conclusion, it is necessary to observe the following rules.
Public dissemination of photographs of the employee in the
workplace or at another private place, is only possible with the
prior consent of the employee in question and must be limited to
the purpose for which the latter has given his consent. If however,
the use of the images is limited within the walls of the company
and it is necessary for the organization of work, such consent is
in principle not longer required. If on the other hand, the picture
has been taken at an event outside the company, more specifically
in a place accessible to the public, consent is required if that
person has been obviously portrayed. Illustrations and photographs
of crowds can be made without the prior explicit authorization,
provided that they are used under normal expectations of the
photographed employees.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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