Sharing photos without consent: what can you really do?

Sharing photos or videos of someone without their consent is not always a criminal offence in the Netherlands, but publishing sexual images of someone while knowing it may harm them is (Article 254ba of the Dutch Criminal Code). An ordinary photo must also come down if the person in it has a legitimate interest in that.

The next step depends on the kind of image and who is in it. A private photo in a group chat calls for something different from a photo of a presenter that a brand puts in an advertisement without asking.

Who has a say over the use of a photo

Two people have a say over a photo. The photographer holds the copyright and decides whether the photo goes online or is used commercially. In addition, anyone who is recognisable in the photo has image rights. For image rights it makes no difference whether it is a photo or a video.

If the photo was taken at your request, for example at a shoot you arranged yourself, the photographer may only publish it with your consent (Article 20 of the Dutch Copyright Act). Image rights for businesses explains when you can withdraw that consent.

If the photo was taken without your request, the photographer may publish it unless you have a legitimate interest in opposing publication (Article 21). Think of your privacy, your safety or your reputation. For artists, presenters and influencers, the commercial value of their face counts too. The court weighs that interest against the freedom of expression of whoever publishes, also where the photo was simply taken in the street.

If you are the photographer and someone uses your photo without a licence, it is a copyright matter. Read about the cease-and-desist letter for copyright infringement.

If you publish images yourself for a campaign or a corporate film, see image rights for businesses. For an article or documentary there is pre-publication legal review.

When sharing photos without consent is a criminal offence

Dutch law expressly makes four ways of making or sharing images an offence:

• publishing sexual images of someone while knowing this may harm that person (Article 254ba of the Dutch Criminal Code, since 1 July 2024);
• using a hidden camera to make images of someone in a home or another non-public place (Article 139f);
• spreading someone’s personal data or images to frighten them or cause them serious nuisance (Article 285d);
• publishing a portrait without being entitled to do so (Article 35 of the Dutch Copyright Act), a minor offence that is rarely prosecuted in practice.

With sexual images, a hidden camera or threats, a police report is the first step. With an ordinary photo the route runs through image rights and the civil courts.

Photographing or filming someone without consent is not the same as publishing

Taking a photo or video of someone in a public space is generally allowed. One exception is covert filming with a camera installed there that is not recognisable as such (Article 441b of the Dutch Criminal Code). Image rights only come into play once the images are published.

Even then, publication may be allowed despite your objection, in the case of:

• a newsworthy event, where the court weighs whether your privacy carries more weight;
• a public event, unless you have a legitimate interest in preventing publication;
• public office, where the photo contributes to public debate.

A lack of consent therefore does not automatically make a publication unlawful. Filming and photographing in public for news and documentary explains how this works out.

What the courts decided about shared photos

In July 2024 the Amsterdam Court of Appeal convicted a defendant who had published photographs of a sexual nature of the complainant. The complainant had joined the criminal proceedings as an injured party and was awarded €1,000 for non-material loss (ECLI:NL:GHAMS:2024:2271, in Dutch). The case was still decided under the former Article 139h.

According to the District Court of Limburg, a company had to prove that it had consent to use photographs of two people in advertising. The court calculated the loss using the rates of Stichting Beeld Anoniem, a foundation that applies fixed rates for the use of photographs (ECLI:NL:RBLIM:2023:4201, July 2023, in Dutch). If you use images of someone else in advertising, make sure you can show the consent.

First steps when a photo or video of you is circulating

1. Record what is circulating. Take screenshots showing the link, the date and the account that posted the image. Do it straight away, because a post can disappear before you have recorded it.
2. Report the image to the platform. Most platforms have a reporting form for images that infringe your rights. State which image it is and why it infringes your rights; such a report is more likely to be acted on than a brief complaint.
3. Ask whoever shared it to take it down. If you know who posted it, do so in writing, so that you can show you made the request.
4. Report intimate images, a hidden camera, threats or blackmail to the police. Bring your evidence. You can call the police first on 0900-8844.

If you cannot resolve it yourself, the Offlimits helpline helps free of charge and anonymously to get unwanted photos and videos taken offline (in Dutch). For legal advice on a private matter, you can also contact the Juridisch Loket, the Dutch legal aid desk (in Dutch).

When images of a public figure are circulating without consent

Liaise acts for public figures and their management when images are circulating or are being used without consent. More is then at stake than an awkward moment: a client who pulls out, a campaign that falls through, a private life suddenly exposed.

With private images in a gossip magazine, on a juice channel or in a viral post, the court weighs, among other things, whether the image contributes to a debate of general interest and how it was obtained. Well-known people in the news and gossip media explains what those factors are.

If a brand uses your face in an advertisement or on merchandise without asking, you can object and claim a fee in line with what you could have charged for such a campaign. Read more about claiming a fee when your portrait is used without consent.

If the image was faked with AI, see removing a deepfake.

We draft the cease-and-desist letter, seek removal and damages in interim injunction proceedings where necessary and tell you in advance how strong your position is. If publication is still pending, an injunction to restrain publication is sometimes possible.

Are images of you, or of someone you represent, circulating? Call 020 675 88 21 or send us a message.