Consent in Photography
Updated: Feb 2
Vaibhav Gaur & Shashwat Singh, Students, Dr. Ram Manohar Lohiya National Law University, Lucknow
Photographs are explorable and nostalgic things but there is no doubt as to whether the questions of a photograph having the ability to affect the person whose photo is being captured and from quite a distance even without the knowledge of the subject currently is brought into the light are complicated by the social media explosion, which today dominates every aspect of our modern digitalized life. So, now the question as to whether one’s photograph- the way it is used and the manner it was captured- is in violation of the law of the land or not becomes very important.
The things which would decide whether a photograph breaches the law or not are the place, purpose and the use (intended to be used) of the captured photo.
Generally taking photographs at public places is legal; however, if the reason is found out to be voyeuristic, one could land in some serious trouble as per IPC. The law probably isn't well updated to meet today’s requirement. In the current times when technology is being used in every sphere, drone cameras which most people would reasonably think of as being harmfully invasive of privacy, are largely unregulated; and possibly can be brought under the eyes of law only if the images being put to some improper use. Here, to mention specifically, photography is something which has a very comorbid connection with Consent and consent has its connection with Contract.
Contract And Consent
A contract in simplest terms is an agreement which the law seems to be as an enforceable. An agreement could be defined as “every promise and every set of promises forming the consideration for each other”. Section 10 of the Indian Contract Act requires free consent as one of the essential pre-requisites for the contract to be valid in the eyes of law whose absence would make the contract voidable as per section 19 of the Act.
Informed consent means the knowing consent of an individual or their legally authorized representative without undue inducement or any element of force, fraud, duress or any other form of constraint or coercion. Informed consent must begin with a concise and focused presentation of the key information that is most likely to assist a prospective subject or legally authorized representative in understanding the reasons why one might or might not want to participate. Autonomy, Beneficence and Justice are the key components of informed consent and must be complied with. The academic and legal discussions on whether the user consent in online research and marketing should be informed and explicit are something we can see having a connection with the subject here.
For a contract to be made, communication plays a vital role; be it for acceptance, or for that matter even that of a proposal, or for revocation. Promises may also be express or implied, that is, may be expressed through words or by conduct. A silent agreement could be the result of the implied promises. An unconditional acknowledgement of liability with nothing said to the contrary amounts to an implied promise to pay. The Supreme Court has considered the intention to create legal relations to be the contractual element required to be present at the time of creating the contracts. Acceptance can be communicated by conduct as well. Where a written contract is signed by the party accepting, he becomes bound by all its terms, whether he has read it or not.
Now, the question one should ponder here is whether silence can be deemed as consent to capture their photograph and what when the subject himself is unaware of the fact that he is being captured. Can there be any kind of silent agreement in photo consent? The answer is NO and taking a photo consent form signed in writing is the best safe way possible.
Photo Consent and Contract
While discussing all these aspects and the provisions, cases, the aspect which needs our attention is the matter of Photo Consent and for a matter of fact, India has no specific law for that. What we need to ponder upon is that whether we can take (click) someone’s photo without their consent or not and what are the legal implications of the same. Also, to think on the other side of the same, the question is if we have given photo consent, whether we can revoke it or not? If we can, what would be the suitable time, moment to revoke it and what if even after revocation, the photo which was taken at the time the photographer had our photo consent post that photo of ours.
Photo Release Forms
We generally wish and many times claim photography as something simply getting a camera, our favourite lens, and capturing into the lens whatever we wish to. However, there lies a paradox in the fact that the picture doesn’t become complete just by getting a picture clicked. Another important aspect which is actually the legal one is the photo release form, the absence of which could be an invitation to trouble. In basic terms, a photo release form is a contract between the photographer and the client or the subject in a photograph. Release forms are the legal permit allowing the captured images of the people and property to get published; wherein publishing would refer to posting that image online publicly or by print/television medium or everything which lies on the scale.
Release forms can simply allow the party to indefinitely have the right to publish the images or they can have specific criteria decided for the publication. Release forms, thus become the instrument ensuring the presence of no grey areas as regarding authority for using an image or not.
The term photo release form is an umbrella term covering a wide ambit for various releases. However, the most common usage of the term photo release form is for when a photographer is granting their client or subject use of the photographs.
The photo release form is proof that the photographer has informed the client and the client has consented to the commercial or self-promotional use of the photograph. A release form is a contract and the document be sent to the proposee before the photoshoot and there should be sufficient time to review. If you present the contract without prior notice on the date of the photoshoot, it can be considered under duress and a copy of the contract must be with all the signatories.
In view of the privacy concern, publishing one’s photograph without his consent and if he is recognizable, it is definitely not legal. Also, using someone’s photograph without his consent for commercial use is something one should refrain from. In either case, a photo release form, or more generally, the photo consent form is something which becomes of utmost importance and must be ready.
International Views on Informed Photo Consent
Canadian Supreme Court addressed the issue of Photo Consent, way back in 1998, for the use of a person's image without their consent.
Photographer Gilbert Duclos clicked a photograph of Pascale Aubry (17) while the subject, here Aubry, was sitting on the steps of a building in Montreal and got the photo published in Vice Versa, a magazine dedicated solely to the arts. Aubry in her claim said that she became the object of ridicule, because of the very reason of her published photograph, among her friends. Aubry on the first hand did not know of her photo being taken and had not even consented to its publication. The case went all the way to the Canadian Supreme Court, while all the lower courts ruled in Aubry’s favour in the suit filed by her for an invasion of her privacy.
Very often than not, an advertising agency uses somebody’s photograph without their consent and even when the person in the photograph does not even know of his/her photograph being taken- as in the case of Aubry. It can occur, for example, when a focus group is videotaped sampling a new product, and the agency uses a clip in an ad without the person's consent. Then the question arises for its legality?
The majority in the Supreme Court of Canada said - "if the purpose of the right to privacy...is based on...the control each person has over his or her identity... this control implies a personal choice." The choice that one has would be the choice to not get their image published. The Court continued: "(there is) an infringement of the person's right to (privacy)...as soon as the image is published without consent and enables the person to be identified." The Court said that in assessing a matter, the artist's right to publish their work must be taken into consideration, but so too must the subject's right not to consent.
If we talk about the situation in the European Union, they have a regulation in place expressly providing for revocation of consent for their data online. The principles of Right to Withdraw Consent and the Right to be Forgotten in the GDPR (General Data Protection Regulation) which came into effect on 25 May 2018, were a cause and the issue of controversy among the business world and the privacy scholars because of the impact they would have on the user’s data and its handling under the new legal provisions and the drastic consequences of enforcing these new requirements in the era of big data and internet of things. Consent and the right to be forgotten is something which remains at the centre of discussion in the entire GDPR. Specifically, the GDPR introduces “the right to withdraw consent” in Article 7(3) and the “right to be forgotten (RtbF)” in Article 17, two secondary rights the aborigins of which can be traced back to the fundamental concepts of data protection. Supplementary to the right to revoke consent, two more powerful rights have been foreseen under the GDPR, the right to object under Article 21 and the right to restriction of processing under Article 18. The right to oblivion is something which is anticipated in many European Countries one example being France. Xanthoulis has asserted that the Right to be Forgotten should be visualized as a basic human right and more specifically as an expression of the broader right to privacy.
Yet, contrary to the general impression, it has been pointed out by many scholars and the Commission itself that the Google Spain judgement does not create a Right to be Forgotten, extending the lawfully published information right and the right to object.
If the photo, when published, serves a socially useful purpose, then the US Law allows it to be published without consent.
Legal Position In India
The idea of photography in public places might not serve well with everyone in India. More so, the country doesn't have well-defined laws to distinguish violation of privacy from pure creative pursuits. Indian Law has nothing to say on one being photographed secretly in public but there is still some hope as professional photography is allowed in public but on the contrary, capturing a woman’s photographs without her consent could get one landed in serious trouble. Laws relating to a violation of fundamental rights, Information Technology and Sexual Harassment will help in registering a complaint or filing a case. Fundamental Rights can help in this regard to some extent as it (photography without consent) is only expressly allowed for public spaces. However, publishing a photo in a manner that might be "embarrassing, mentally traumatic" or causes "a sense of insecurity about the activities the person in the photograph is involved in" is illegal under Article 21. After the rarest of the rare Nirbhaya case, the Indian Penal Code was amended to include voyeurism as an offence. However, as per this amendment, the accused would be liable for getting convicted if the photograph was taken in a private space or while the complainant was engaged in a private activity which is not usually done in a public space. The second reason for conviction is if the complainant consented to the photograph or video but didn't consent to a third person seeing it. The IT Act 2000 also comes into play in the case of cybercrime. Victims of such photographs and/or videos can file a complaint under Cyber-Stalking, Dissemination of Obscene Material and Defamation. The line between professional photography and these acts of perversion is thin but the law is clear that the nature of picture would decide whether a complaint to be registered and the same would be a deciding factor in the court of law as well.
According to police, in matters of public photography, the law is silent and has nothing to say and there are no definitions provided. Although an implied consent exists in case of persistent or aggressive photography of an individual, it comes under the legal definition of harassment.
"To put it simply, as long as the subject of the photograph doesn't have a problem, the law doesn't step in. Cases are booked, based on the nature of the photograph," says Charan Reddy, additional commissioner of police, law and order. It can be said that having a camera in hand does not provide any additional right to anyone. You cannot take a photo of a person who does not wish to be shot. Moreover, it would contribute to one’s privacy being invaded to capture someone’s photograph without their consent. Right to Privacy now having been declared a Fundamental Right, requiring consent for a photograph becomes even more important as failure to do so would result in a violation of a fundamental right.
A person can be prosecuted for taking a photograph of a person if his manner of capturing that photograph amounts to a violation of the right of privacy. But, what the paradox here is, that the Copyright Law in India is silent on any such specific provisions for photos in general and photo consent. A display of affection at a public place (photography at public places is allowed) does not amount to a waiver or negation of your right to privacy.
There is no SC verdict on ‘photographing without consent’ as an infringement of privacy. Under Section 66E of the IT Act, privacy is restricted to images of private parts taken without consent or uploaded. The Information Technology Act does not criminalise the act of taking or uploading a photograph or a video of someone at a public place without consent but criminalises the taking of images of private parts.
There are reasonable restrictions on the right to publication of photos, especially those taken without consent. It entails that the act of discreetly filming or photographing someone, even if the person is performing some action at a public place, without the person’s permission enables such a person to sue for compensation.
While for news, news features and current affairs there is no bar, the law is as yet unclear on taking a person’s photograph or video without consent and also uploading online (on social media or other platforms) such material as certain acts may amount to a violation of privacy while others may end up not being so. One can take his camera or phone with him as he walks down the street, and he is free to capture someone’s or something’s photograph he wishes to, just while he is walking. Even if one is capturing photos from inside his own property, it is more convenient and suitable to consider it not as a right but as liberty. Also, there is no clarification specifically on this subject in the Indian copyright law also but IPC does shed some light on the issue in reference to women safety. The wide reach of Social Media and the ever-expanding online world definitely needs some clarity on the subject as one’s identity is his own and it must be up to him to decide what he wants to share and whatnot.
Photo consent is something which must be embedded expressly in law and the need for the same is now more than ever, and this need will only increase with the increase in digitalization of the world. For using Photo Release Forms or the Photo Consent forms, one should be ready with legible and legally binding documentary paperwork ahead of time and things must not be left open-ended in the document. The interconnectedness of Right to Privacy, data, Right to Freedom, Right to Equality, freedom of contract is something which in the era of the online world, should be seen in connection with Consent, photography and one’s identity and identifiability which to a certain extent was done in the European Union’s GDPR. Threats to one’s virtual being and his data in absence of clear regulations is a concern which should be now addressed and requiring photo consent must be made legally binding to prevent failure of anonymity. In this digital age, assuming consent from inaction is something which needs to expressly prohibited. In the current age of democracy and rights, under the realm of Right to Freedom (speech and expression), the online being of ourselves could be under a serious threat without any consent regulation. Thereby, freedom of the Internet must comply with certain norms to protect one’s identity the way he wants or for that matter, erase it if he wishes so. As regards to the primary conflict between the privacy and the freedom of speech, Solove argues in his work that “we must protect privacy to ensure that the freedom of the Internet doesn’t make us less free.” The more freedom people have to spread information online, the more likely that people’s secrets will be revealed in ways that can hinder their opportunities in the future.
In a nutshell, India on the way to digitalization definitely requires a law on the subject which should incorporate the principles of consent, revocation, contract, freedom of expression, right to privacy and the freedom on the internet; which to a surprise, India doesn’t have till date.
“Just because personal information is made available in some fashion on a social network, does not mean it is fair game to capture and release to all.”
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