Using the image of an individual: civil law aspects that should be borne in mind in Russia
One of the personal non-property rights of an individual is the right to his or her image. An individual enjoys this right from the moment of his/her birth and such a right may not be alienated in any way.
In what instances can the right of an individual to his or her image become an issue during the commercial activity of a company?
In most cases such issues arise from the mutual relations of a company with its employees. Photographs of employees are frequently published on a company’s website. In some cases, a company uses the images of its employees for advertising and marketing purposes (for example, in promotional videos, presentations at exhibitions, etc.).
A company should bear in mind that such use of the images of its employees by default requires their preliminary written consent. At the same time, in some situations such consent is not required: for example, if the individual’s image ended up on a photograph or video recording by accident and is not the key figure (for example, in a panoramic shot of a room with conference participants, etc.).
In this article we will focus on issues related to the procedure and form of the receipt of an individual’s consent to the use of his or her image, describe all the key instances when the receipt of such consent is not required, and provide practical recommendations on how best to structure mutual relations with individuals, whose images a company plans to use.
1. Consent to the publication and use of the image of an individual
According to the general rule enshrined in Clause 1 of Article 152.1 of the Civil Code of the Russian Federation (the “RF Civil Code”), the publication and subsequent use of an individual’s image (including his or her photographs, as well as video recordings or works of visual art where the individual is depicted) are only permitted with the consent of this individual.
Furthermore, the publication of the image of an individual is understood to mean the performance of an action which makes this image publicly available for the first time. Such actions include the publication, public display, posting of the image online, etc.
Subsequent use of an individual’s image is understood to mean the actions which have been taken after its publication. Universal access to an image per se does not grant third parties the right to freely use it. In this case, the consent of the individual must also be obtained.
Effective legislation does not regulate the procedure for the receipt and retention of the consent of an individual to the use of his or her image.
The Supreme Court of the Russian Federation stresses that from a legal perspective the indicated consent is a transaction subject to all the general provisions of the RF Civil Code on transactions (See: Clause 46 of Judgment No. 25 of the Plenum of the RF Supreme Court dated 23 June 2015).
In other words, this consent may be given in writing and orally, as well as through the commission of any actions which patently attest to the intention of the individual to the further use of his or her image (implicit actions).
If consent was given orally or through the commission of implicit actions, such a consent covers the use of an image in the scope and for purposes which are clear from the circumstances in which the actions were committed.
Furthermore, in the event of a court dispute, the burden of proof is distributed as follows. The actual publication and/or use of an individual’s image by the respondent must be proved by the self-same individual (the claimant), while the respondent is required to prove the legitimacy of publishing and using the image of the claimant (in other words, they received the aforementioned consent or such consent is not needed).
The consent of an individual to the publication and further use of his or her image may contain a number of terms and conditions which determine the procedure for and limits on the publication and subsequent use of their image, including provisions on the timeframe of such consent as well as the forms of use of the individual’s image.
2. Withdrawal of consent by an individual
Please note that previously the consent of an individual to the use of his or her image could be withdrawn at any time.
Consent is withdrawn without requiring court action. However, the right of the individual may only be protected through the filing of a claim if such withdrawal was impeded (it was rejected by the other party). If an individual requests that a court prohibit the use of his or her image without initially withdrawing his or her content to such use, attributing the claim to the illegality of such use, then this claim would not be recognised as the withdrawal of a previous consent that had been given.
In addition, it is clear that consent may only be withdrawn in those instances when the legislator made use of the individual’s image contingent on the receipt of such consent. In other words, consent cannot be withdrawn if it was not required initially (for more details, see point 4 of this article).
However, the inability to withdraw consent in the indicated instances does not prevent an individual from protecting his or her rights in other ways stipulated by civil legislation.
If an individual has withdrawn his or her consent to the use of an image, then the person that owned the right to use this image may demand the reimbursement of the losses incurred thereby due to such withdrawal.
3. Liability for the illegal use of an individual’s image
If the image of an individual is used without his or her consent, this individual is entitled to demand suppression of the illegal use of said image through any legal methods. For example, through the confiscation and destruction of the physical media containing the individual’s image (newspapers, magazines, other printed material) or the deletion of the individual’s image from respective web pages.
Moreover, an individual, whose right to an image has been infringed, is entitled in any case to demand that the infringing party reimburse the losses caused to the individual by the indicated infringement in the form of actual damages and lost profit.
Finally, if an individual incurs moral damages (physical or moral suffering) due to actions that infringed on an individual’s non-material benefits (in particular, the rights to the image of the individual), the court may demand that the infringing party pay monetary compensation for such moral damages. The specific amount of the moral damages to be reimbursed in each individual instance will be determined by a court, taking account of all the facts of the case.
If the illegal use of an individual’s image results in the illegal collection or dissemination (including public) of information on the private life of an individual, information on a personal or family secret, without the individual’s consent, then such use could result in criminal liability in accordance with Part 1 of Article 137 of the RF Criminal Code, which stipulates the imposition of a penalty, up to and including imprisonment for a period of up to two years.
4. Legal use of the image of an individual without his or her consent
In certain instances, the consent of an individual to the use of his or her image is not required, namely:
- The image is used for state, general or other public interest;
- The image of the individual was obtained in a photograph taken/video recorded in freely accessible places, or at public events (meetings, congresses, conferences, concerts, shows, sports events and similar events) and at the same time, the image of the individual is not the main target of a respective photograph (video recording);
- The individual posed for a fee (Clause 1 of Article 152.1 of the RF Civil Code).
Let us consider in more detail each of the indicated exceptions.
4.1 Use of an image for state, general or other public interest
The first such exception is the use of an image for state, general or other public interest.
Depending on the indicated interest, there are also a number of criteria for applying the indicated exception.
4.1.1 State interest
Consent to the publication and use of the image of an individual is not required if this is necessary to protect law and order and state security.
The RF Supreme Court cites as such instances, in particular, searches for individuals, including missing persons, accessories to a crime or the witnesses of an offense (See: Clause 44 of Judgment No. 25 of the Plenum of the RF Supreme Court dated 23 June 2015).
For example, a court deemed admissible the publication of an individual’s photograph without his/her consent on the web portal of a mass media outlet in connection with the coverage of the court’s sentencing of the individual. The court concluded that the image had been published and used, inter alia, to protect law and order, and pursued the goal of publicising the activity of the employees of the law enforcement authorities (See: The Decision of Frunzensky District Court of the City of Saratov dated 6 March 2017 in case No. 2-373/17).
4.1.2 General interest
As noted by the RF Supreme Court, general interest should not be understood to mean any interest manifested by an audience, but rather to mean, for example, the requirement of society to identify and disclose a threat to a democratic law-based state and civil society, public safety and the environment (See: Clause 25 of Judgment No. 16 of the Plenum of the RF Supreme Court dated 15 June 2010 “On the Practical Application by the Courts of the Law of the Russian Federation “On the Mass Media”).
It is necessary to distinguish between an announcement of facts (even contested issues) capable of having a positive influence on a discussion of issues in society concerning, for example, the exercise by officials and public figures of their functions, and the communication of the details on the private life of an individual who is not a public figure.
Whereas in the first instance the mass media are performing their public duty when notifying individuals of issues of general interest, in the second instance they are not playing such a role.
4.1.3 Public interest
The publication and use of the image of an individual is admissible when this individual is of public interest.
To declare the interest in an individual to be “public”, two criteria must be met:
- Such an individual must be a public figure, for example, hold a state or municipal position, play a material role in public life in politics, the economy, art, sport or any other area;
- An image is published and used in connection with a political or public discussion, or the interest in this person is socially significant.
At the same time, consent is required if the sole goal of the publication and use of the individual’s image is to satisfy the interest of the public at large on the individual’s private life or to make a profit.
4.2 The image is obtained in a public place and is not the main target of the video recording/photograph
4.2.1 Images obtained in public places
The next exception concerns a situation when the image of the individual was obtained in a video recording/photograph taken in freely accessible places, inter alia, public court sessions, or at public events (meetings, congresses, conferences, concerts, show, sports events and similar events), except for instances when this image is the main goal.
It should be borne in mind that the photographing or videoing of a court session (inter alia with simultaneous broadcasting) is only permitted with the authorisation of the court. At the same time, additional consent to the use of such a recording is not required from the participants in the court session.
In connection with this exception, the Supreme Court of the Russian Federation notes that the image of an individual in a photograph taken in a public place will not be the main goal if the photograph as a whole depicts information on the public event where it was taken (See: Clause 25 of Judgment No. 25 of the Plenum of the RF Supreme Court dated 23 June 2015).
The courts did not recognise the image of the individual as the main goal of the photograph, for example, due to the following circumstances:
- The publication contains not only the image of the individual, but also part of the residential premises and the image of another individual talking;
- The photograph is not accompanied by any comments, the name and position of the individual are not disclosed;
- The actual photograph yields little information: the face of the individual depicted on the photograph is almost entirely concealed (the photograph is taken practically from the back, while the face of the individual was covered by their fringe and the positioning of the camera).
4.2.2 Group photographs
Group photographs stand out when analysing this exception. In this case individuals play an active role in the process – they pose, for example, unlike the video recording of a court session.
Such actions (posing) are recognised as implicit consent to photographs.
According to the general rule, if individuals depicted in a group photograph clearly agreed to be photographed, and did not prohibit the publication and use of the photograph, then one of these individuals is entitled to publish and use such an image without requiring the additional consent of the other individuals depicted on the photograph.
At the same time, however, such an image should not contain information on the private lives of the indicated individuals.
The European Court of Human Rights has stressed that a photograph may contain very personal or even intimate “information” about an individual, his or her family. The image of an individual constitutes one of the key attributes of his or her identity, as it reveals the unique characteristics of the individual and distinguishes the individual from his or her peers (See: § 85 of the Judgment of the ECHR dated 10 November 2015 Case of Couderc and Hachette Filipacchi Associés v. France (Application No. 40454/07)).
When determining whether or not the publication of a photograph interferes with the applicant’s right to respect for his or her private life, the European Court takes account of the manner in which the information or the photograph was obtained (See: § 86 of the Judgment of the ECHR dated 10 November 2015 Case of Couderc and Hachette Filipacchi Associés v. France (Application No. 40454/0740454/07)).
In connection with this fact, the European Court notes that photographs published in the “sensationalist press” or in “romance” magazines, which generally aim to satisfy the public’s curiosity regarding the details of an individual’s strictly private life, are often obtained in a climate of continual harassment which may induce in the individual concerned a very strong sense of intrusion into their private life or even of persecution (See: Decision of the European Court on the case of Société Prisma Presse v. France dated 1 July 2003, applications No. 66910/01 and 71612/01, the Judgment of the European Court on the case (Hachette Filipacchi Associés v. France (ICI PARIS) dated 23 July 2009, Application No. 12268/03, § 40, and the Judgment of the European Court on the case Von Hannover v. Germany (No. 1), § 59).
Another factor assessed by the European Court is the intended use of the photograph and potential subsequent use (See: Judgment of the European Court on the case Reklos and Davourlis v. Greece dated 15 January 2009, Application No. 1234/05, § 42, and the Judgment of the European Court on the case Hachette Filipacchi Associés v. France (ICI PARIS)", § 52).
However, these considerations are not exhaustive. Other criteria may be taken into account, depending on the specific facts of the case. The European Court stresses the importance of assessing the seriousness of the intrusion into private life and the consequences of the publication of the photographs for the interested party (See: § 85 Judgment of the ECHR dated 10 November 2015 in the case of Couderc and Hachette Filipacchi Associes v. France (Application No. 40454/07); Judgment of the European Court in the case Gurgenidze v. Georgia, § 41).
4.3 The individual posed for a fee
The next case when the consent of the individual to the publication and use of his or her image is not required concerns the posing of an individual for a fee.
Practice shows that the courts adopt a fairly formal approach to this issue.
For example in one case, a contract was concluded between a model and a photographic studio under which a previously specified amount of EUR 3,000 was to be paid for participation in the photo shoot. The photographs were posted on advertising billboards, websites, banners on working in restaurants. The model had not granted her consent to the use of her image. In addition, the model alleged moral damages, as she was studying at the Mikhail Shchepkin Higher Theatre School (Institute) associated with the State Academic Maly Theatre in the acting faculty and her images posted throughout Moscow had become the topic of intense debate and evoked the discontent of the administration of the indicated higher institute of education. Her actual participation in an advertising shoot, as well as her portrayal as a waitress used by the studio posed, in the model’s opinion, a serious threat to her professional activity as an artiste of dramatic theatre and cinema.
The court disagreed with the model’s opinion, stating that the model had received corresponding compensation for posing. As a result her consent to the publication and subsequent use of her image was not required (See: Decision of Lefortovsky District Court of the City of Moscow dated 31 October 2014 in case No. 2-3040/2014).
5. The individual published his/her own image
The publication of the image of an individual, inter alia, the posting of the image by this individual online, and universal access to such image per se do not grant other persons the right to freely use this image without receiving the consent of the depicted individual.
At the same time, the actual posting by the individual of his/her image online may attest to the consent of such an individual to the further use of this image, for example, if this is stipulated by the terms and conditions for using the website where the individual posted such an image.
For example, Sub-Clause 1, Clause 3 of Section 3 “Your commitments to Facebook and our community” of the Facebook User Agreement states (https://www.facebook.com/legal/terms): “if you share a photo on Facebook, you give us permission to store, copy, and share it with others (again, consistent with your settings) such as service providers that support our service or other Facebook Products you use. This licence will end when your content is deleted from our systems.”
The social network VK imposes special requirements on placing advertisements which use the images of individuals. Pursuant to Clause 4.6 of the Advertising Rules of VK, use of the pictures of individuals in an advertisement is only allowed if there are relevant supporting documents which confirm the consent of this individual.
At the same time, the guidelines on the indicated clause of the rules clarify that (https://vk.com/faq10046):
- Use of the pictures of famous people in advertising materials is only admissible with their written consent or other permissions;
- Use of the images of relatives, friends or acquaintances in advertising materials is only admissible with their consent and a guarantee letter;
- Use of the images of people from public sources, for example, photograph databases, is only possible with a guarantee letter.
In the last two instances, it is clearly assumed that consent has been given by the third parties orally or implicitly.
VK has published the form of a guarantee letter (https://vk.com/doc-20126787_598528437) to be filed on behalf of the distributor of the advertising.
However, even though it states in this form that the distributor of the advertising assumes at their discretion all the risks and legal liability related to the use of a picture in the advertising and/or the name of each individual, this obligation does not impair the right of the third party, whose picture was used without his/her consent, to demand the deletion of this picture, and the suppression or prohibition of its further dissemination by both the distributor of the advertising and the actual advertiser.
6. Recommendations to companies
As companies are in any case linked to their employees by various contractual obligations, we recommend including in advance in the text of a respective contract with an employee the consent of the employee to the use of his/her image. One alternative might be a simple written consent signed by the employee as a separate document.
If a company plans to use the images of third parties not linked to the company by any contractual mutual relations, it should also make sure that it has obtained the preliminary written consents of the indicated parties to the use of their images by the company.
At the same time, companies should not forget about the unconditional right of an individual to withdraw his/her consent to the use of his/her image at any time. Furthermore, a company may find it hard to recover the losses that it has incurred – in a respective trial the company will have to prove the size of the losses (at the very least provide an approximate figure) as well as the causal link between the withdrawal of the consent by the individual and the indicated losses incurred by the company.
In connection with this fact, it is worthwhile considering the possible inclusion in the consent of the individual to the use of his or her image of a provision on a penalty payable by the individual to the company if the individual exercises the aforementioned right to withdraw his or her consent. At the same time, the size of the indicated penalty should in any case be comparable to the size of the possible losses of the company attributable to the withdrawal of the consent. Otherwise there is a significant risk that the amount of the penalty might be reduced by a court.