Sharing photos without consent: what can you really do?

It can happen that a photo suddenly surfaces and you think: but… I never gave permission for that. Perhaps you are in it yourself. Perhaps someone has used your work as though it were their own. Or perhaps the image is even being passed around in order to harm you. Whatever it is, it does not feel right. And, more importantly, the law is on your side.

Where it starts: who is actually entitled to that photo?

Every photo automatically has an author, and that author almost always holds the copyright, without having to do anything to acquire it. Only that person may therefore decide whether the photo goes online, is shared or is used commercially. Does that happen without permission? Then in most cases that is simply copyright infringement.

But perhaps you are not the author at all. Perhaps you are the person in the photo. That is where image rights come in. And that right is more powerful than many people think. If you are recognisably visible in a photo, that photo may not simply be published. Full stop. Certainly not where it harms your privacy, where you are shown in a vulnerable situation, or where the photo is used to “expose” you or hold you up to ridicule.

Is sharing photos without consent a criminal offence?

That depends on the kind of image. A family photo shared without permission is annoying, but usually not criminal. Intimate photos? Those are. Covertly made images? Also criminal. Circulating images in order to intimidate or pressure someone? Criminal again.

Situations in which publication is probably not allowed:

• where the photo is intimate, sensitive or damaging,
• where you are portrayed negatively without relevant context,
• where the photo was taken covertly,
• where the photo is used for marketing, advertising or commercial purposes.

In those situations you can simply report the matter to the police, and sometimes you should, in order to prevent further harm.

Two situations need to be distinguished: the photo was taken with your consent, or it was taken without it.

If the photo was taken with your consent, the author may not publish it without your permission. Indeed, you can withdraw your consent, unless that would be unreasonable towards the other party (in the case of a large campaign you knowingly took part in, for instance).

If the photo was taken without your consent, the same applies: the author may not publish it without your permission, unless a statutory exception applies.

In every case the question is whether you have a legitimate interest in opposing publication. Think of your privacy, reputation, safety, emotional or non-material interest, or commercial value (for influencers, artists, models and so on). Do you have such an interest? Then publication is not allowed. Not even where the photo was taken “just out in the street”.

When may a photo be published?

Situations in which publication may be permitted are:

• newsworthy events (where it has to be weighed whether your privacy carries more weight),
• photos of public events (unless you have a legitimate interest in preventing publication),
• and where you hold public office and the photo is relevant to public debate.

In short, not every photo that is online without your consent is automatically unlawful.

What do the courts say about sharing photos without consent?

Image rights may sound abstract, but the consequences of using someone’s photo without permission are very concrete. Here are some relevant cases:

• The online supermarket Picnic used an employee’s portrait in an advertising clip on social media without her consent. The court awarded €10,000 in damages because her image rights had been infringed and the footage had been commercially exploited.
• The defendant published photographs of a sexual nature of the complainant through digital channels without her consent. The court of appeal convicted the defendant and further ordered him to pay €1,000 in non-material damages to the victim.
• In this case photographs of the claimants were used for purposes for which they had given no consent, such as advertising in shops. Among other things, the case illustrates how the courts assess damages where image rights have been infringed. In this case the court, like many others, took the rates of Stichting Beeld Anoniem as its reference point.

These rulings offer a glimpse of how the courts assess image rights, and illustrate the importance of asking permission before you publish someone’s photo.

What can you do straight away if your photo is going around?

Step 1: Gather evidence
Before you take any further action, it is essential to secure the evidence. Take screenshots of the publication, including the URL, the date and the account that posted the photo. Do this quickly, because content can be removed before you have a chance to document it.

Step 2: Contact the platform
Most social media and websites have a procedure for reporting content that infringes your rights. This is known as notice-and-takedown. Platforms such as Instagram, Facebook and Google are obliged to consider such reports seriously. The photo is often removed within a few days.

Step 3: Write to whoever shared it
Do you know who posted the photo? Then you can write to them directly asking for the photo to be removed. Preferably do this in writing (email or letter), so that you have evidence of your request.

Step 4: Consider reporting it to the police
Are intimate images, covert recordings, threats or blackmail involved? Then you can report the matter to the police. Take the evidence you have gathered with you. The police can also advise you on further steps.

Why legal help from an image rights lawyer is often decisive

A photo doing the rounds can do far more than cause an awkward moment. It can affect your reputation, your peace of mind and even your career. That is why it is crucial to know that you are not powerless.

An image rights lawyer can help you in a number of ways:

• Drafting a cease-and-desist letter
  A letter from a lawyer often has more effect than a request of your own. The person who shared the photo then knows you are serious and that further steps will follow if it is not removed.
  
• Forcing removal
  A lawyer can start interim injunction proceedings to force removal if the person who shared the photo does not respond to a cease-and-desist letter. This is a fast procedure that can lead to a ruling within a few weeks.
  
• Claiming damages
  Where your image rights have been infringed you can claim damages. The amount depends on the circumstances: how damaging was the publication? Was there commercial use? Are you a well-known person with “commercially exploitable popularity”?
  
• Advice on your position
  Sometimes it is not immediately clear whether you have a case. An image rights lawyer can assess how strong your position is and which route offers the best prospects: civil, criminal, or a combination of the two.

Would you like to know whether there is a legal route open to you? Our image rights lawyers can think it through with you quickly, often the same day.