View source for Commons:Photographs of identifiable people

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Commons respects the legal rights of the subjects of our photographs and has a moral obligation to behave ethically with regard to photographs of people. The legal rights of the subjects constitute {{Localized link|<tvar|link1>Commons:Non-copyright restrictions</>|non-copyright restrictions}} on use of images. {{Localized link|<tvar|cscr>Commons:country specific consent requirements</>|Country-specific laws}} may affect what content we can host, how it may be published, and whether consent is required to re-use it.</translate> }}

[[File:Actress Anna Unterberger-2.jpg|thumb|<translate><!--T:3-->
Image taken in a private place with consent.</translate>]]
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When dealing with photographs of people, we are required to consider the legal rights of the subject and the ethics of publishing the photo in addition to the concerns of the photographer and owner of the image. These former issues are quite distinct from the copyright status of the image and may restrict or impose obligations on those taking, uploading or reusing a photograph. A Creative Commons licence or public domain status, for example, means that the ''photographer'' (or other owner) has waived or lost certain rights and that ''their'' permission to use the image is not required. However, the photographer is not able to remove any rights belonging to the ''subject'' of the photograph.

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The subject's consent '''is usually needed''' for publishing a photograph of an identifiable individual taken in a '''private place''', and Commons expects this even if local laws do not require it. In many countries (especially English-speaking ones) the subject's consent '''is not usually needed''' for publishing a straightforward photograph of an identifiable individual taken in a '''public place'''. However, the term published should not be construed to include [[:en:Personality rights|commercial use]], as consent is usually required in these situations. Moreover, the '''{{Localized link|<tvar|cscr>Commons:country specific consent requirements</>|country specific consent requirements}}''' vary enormously. Many factors can determine whether and what degree of consent is required. 

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In most countries, these issues only affect images where the person is identifiable and still alive. Certain legal and ethical issues may remain if the person is dead or if they cannot be identified. 

== Legal issues == <!--T:7-->

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There are two forms of [[:en:personality rights|personality rights]] that govern the taking, hosting and use of photographs where the subject is a living person: the right of publicity and the right of privacy. Care should also be taken not to [[:en:defamation|defame]] the subject.

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An image is unacceptable to Commons if it is illegal, or arguably illegal, in any one or more of: (a) the country in which the photograph was taken; (b) the country from which the image was uploaded; (c) the USA (where Commons images are stored).

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The {{t|Personality rights}} template may be used to warn re-users of Commons’ content that local laws may impose additional requirements on reuse, over and above those enforced here. Laws both where the photo is taken and where it is published should be taken into account.

=== The right of publicity === <!--T:11-->
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[[File:Patricia De León.jpg|thumb|<translate><!--T:12-->
[[:en:Patricia de Leon (actress)|Patricia de León]] allowed her image to be used in an anti-bullfighting advertisement for PETA<ref>http://www.webcitation.org/6QaWNrfSB</ref></translate>]]
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The ''right of publicity'' is the right to control the commercial use of one's likeness. The most obvious example of this is in advertising (and it applies whether or not the advertisement itself is for commercial purposes). This right concerns the subject of the photograph and is distinct from the photographer's copyright license which may impose its own terms or grant freedoms regarding commercial reuse. All images hosted on Commons must allow free commercial reuse from a copyright point-of-view, but the subject of the photograph may still refuse permission or demand payment for such reuse. However, this right does not affect the hosting of an image on Commons, rarely affects the use of an image on a Wikimedia project, and is only likely to affect advertisemental/commercial re-users of the image. Note that in some countries and US states, the right of publicity may persist for some time after the subject's death.

=== The right of privacy === <!--T:14-->

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The ''right of privacy'' is the right to be left alone and not to be made the subject of public scrutiny without consent. The right to privacy is enshrined in several international laws though the details with regard to photographs vary from country to country. Images must not unreasonably intrude into the subject's private or family life.

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The law on privacy concerning photographs can be crudely divided into whether the photograph was taken in a private or public place. A ''private place'' is somewhere the subject has a reasonable expectation of privacy and a ''public place'' is somewhere where the subject has no such expectation. The terms are unrelated to whether the land is privately or publicly owned.  For example, a tent on a beach is a private place on public land and a concert is a public place on private property. A place may be publicly accessible but still retain an expectation of privacy concerning photography, for example a hospital ward during visiting hours. Whether the place is private or not may also depend on the situation at the time: for example that same hospital ward would have been a public place during a tour before it opens.

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In the United States (where the Commons servers are located), consent is not as a rule required to photograph people in public places and publish those photos. Hence, unless there are specific local laws to the contrary, overriding legal concerns (e.g., defamation) or moral concerns (e.g., picture unfairly obtained), the Commons community does not normally require that an identifiable subject of a photograph taken in a public place has consented to the image being taken or uploaded. This is so whether the image is of a famous personality or of an unknown individual.

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In many countries the subject's consent ''is'' needed to just take a picture, and/or to publish it and/or to use it commercially ''even if the person is in a public place''. Further nuances may include the age of the subject, what the subject is doing at the time, whether the subject is famous, whether the image concerns news of public interest, etc. See {{Localized link|<tvar|cscr>Commons:country specific consent requirements</>|Commons:Country specific consent requirements}} for details.

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Because of the expectation of privacy, the consent of the subject should normally be sought before uploading any photograph featuring an identifiable individual that has been taken in a private place, whether or not the subject is named. Even in countries that have no law of privacy, there is a moral obligation on us not to upload photographs which infringe the subject's reasonable expectation of privacy.

=== Proportionality === <!--T:20-->

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In some countries, [[:en:Proportionality (law)|proportionality]] (fair use) is the main legal criterion of all exceptions. That means usual practices are admitted and tolerated by the law.

=== Defamation === <!--T:22-->

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Images must not unfairly ridicule or demean the subject. This may result simply from the content of the image but can also arise by poor choice of title, description or category. Defamation is both a legal and moral issue; therefore, Commons does not base decisions on whether the subject is able or likely to sue.

=== Employees === <!--T:24-->

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If the photographer is employed while taking photographs, their actions may be subject to their employment contract or the rules of their professional body. For issues concerning medical staff and photographs of patients, see the essay {{Localized link|<tvar|link>Commons:Patient images</>|Commons:Patient images}}.

== Consent == <!--T:26-->
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[[File:Patient receiving dialysis 03.jpg|thumb|<translate><!--T:27-->
A hospital ward is a publicly-owned space where people have an expectation of privacy, so from the relevant point of view here, it is a private space.</translate>]]
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Just as the circumstances of a photograph govern ''whether'' consent is required, they also influence the nature and degree of consent should it be required. There are three aspects: taking, uploading and using a photograph. At the most basic level, a subject looking at the camera and smiling might normally be assumed to have given their consent to have their photograph taken. In some circumstances, however, verbal or even written agreement may be required.

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Consent to have one's photograph taken does not permit the photographer to do what they like with the image. An image on Commons will have greater potential exposure than one in a photo album, on a personal Facebook, or part of a user's Flickr stream. A model, for example, may have consented to the image being taken for a personal portfolio, but not for publication on the Internet. The photographer and uploader must satisfy themselves that, when it is required, the consent given is appropriate for uploading to Commons.

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Some subjects are unable to give appropriate consent due to young age or because of learning difficulties. In these cases, the consent of the parents or responsible guardians should be sought. 

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For a self-portrait, where the subject of the photograph is also the photographer and/or uploader, consent is assumed, provided they are capable of giving appropriate consent (as noted above).

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Normally it is sufficient that the uploader asserts that appropriate consent was given. The {{tl|consent}} template may be used for this purpose, though it is not required. Please refer to the [[Template:Consent|template documentation]].

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An example of consent that is too restrictive for Commons would be a typical patient photography consent form, which may only allow the image to be used in medical journals or for teaching within the hospital. An example of consent that is more permissive than is required for Commons would be a [[:en:model release|model release]], in which the subject gives up their right of publicity.

=== Country specific === <!--T:34-->

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The table below may be used for indication specific requirements in various countries. Note though, that it is not a legally binding text and that because a country isn't listed here, it does not reflect a fact that everyone is free to take/publish/commercially use pictures of people in public spaces in that country. Further details, with references, may be found on {{Localized link|<tvar|cscr>Commons:country specific consent requirements</>|Commons:Country specific consent requirements}} or by clicking on country links in the table.
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{{Commons:Country specific consent requirements/table}}
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== Moral issues == <!--T:36-->

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While some aspects of ethical photography and publication are controlled by law, there are moral issues too. They find a reflection in the wording of the [[:en:Universal Declaration of Human Rights|Universal Declaration of Human Rights]], Article 12:<tvar|ref><ref>http://www.un.org/en/documents/udhr/index.shtml#a12</ref></>"''No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation."'' Common decency and respect for human dignity may influence the decision whether to host an image above that required by the law. The extent to which an image might be regarded as "unfairly obtained" or to be "intrusive", for example, is a matter of degree and may depend on the nature of the shot, the location, and the notability of the subject.

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The provenance of an image may taint its use irredeemably. A "[[:en:downblouse|downblouse]]" photograph is not made ethically acceptable just because the subject's face is cropped out. A paparazzi telephoto shot of a naked sunbather does not become acceptable merely by pixelating the face.

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In the same way as quality newspapers may apply a "public interest" test to doubtful images, the degree to which an image meets our {{Localized link|<tvar|ps>Commons:Project scope</>|educational project scope}} may also be considered. When in doubt, there is no ''requirement'' for Commons to host ''any'' image of a person.

== Identification == <!--T:40-->

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The degree to which a subject is identifiable varies. An image that includes a clear view of the face is highly identifiable. Other features of the person's body, clothing or the location may help with identifying the subject. Outside of the image, clues may be obtained from the image title, description, origin, source url, and meta-data including but not limited to the geolocation and date. The greater the privacy issue with an image, the more weight should be given to the risk of identification by non-obvious means.  Whether the person is the clear subject of the photograph or a mere bystander or background detail is another important factor.

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The risk of identification can be minimised by not including certain information in the image description. However some details regarding the origin of the image (such as source url and author) may be a requirement of the source image licence or Commons policy, so cannot be removed. It may also be possible to shoot the subject from a different angle or frame it differently.

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It is better to obtain consent than to attempt to anonymise an image that may require it. Placing a black band over the eyes was historically used to hide patient identity in medical publications but is no longer considered effective.<tvar|ref><ref>{{wayback|http://www.icmje.org/ethical_5privacy.html|http://www.icmje.org/ethical_5privacy.html|date=20131009142306}}</ref></> Pixelated features can sometimes be revealed by squinting one's eyes. These crude attempts to anonymise images may damage the value of an image to Commons to such a degree that it has limited or no realistic chance of being used.

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Where the law forbids taking or publishing a photograph of a person without consent, and consent has not been given, then making the subject hard to identify (such as blurring their face) is unethical:  the photograph should not be uploaded to Commons.

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If the original or similar images are already present on the Internet (either on Commons or elsewhere) then attempts at anonymising the subject are ultimately futile. [[:en:Content-based image retrieval|Content-based image retrieval]] engines such as [[:en:TinEye|TinEye]] or [[:en:Google Images|Google Images]] can identify a subject that has been anonymised. All of the following people are readily identifiable by anyone familiar with the subject. They may also be identified by computer, by simply dragging and dropping the image onto Google Images.<tvar|ref><ref>[https://google.com/searchbyimage Google searchbyimage]</ref></>
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<center><gallery widths="170px" heights="240px" caption="<translate><!--T:46-->
Problems with attempts at anonymisation</translate>">
File:Anon-Black-Bands-Eyes.jpg|<center><translate><!--T:47-->
Black band over the eyes</translate></center>
File:Anon-Pixel-Face.jpg|<center><translate><!--T:48-->
Pixelated face</translate></center>
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Cropped head</translate></center>
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== Examples == <!--T:50-->
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[[Image:Five-string bass.jpg|thumb|<translate><!--T:51-->
No consent was required for this shot as it was taken in a public place</translate>]]
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The following examples do not require consent in many countries:

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*An anonymous street performer
*An anonymous person, in a public place, especially as part of a larger crowd
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*People taking part in a public event at a privately-owned venue, for example, a press conference at an office building
*A basketball player competing in a match which is open to the public

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The following examples typically require consent

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*A man and woman talking, entitled "A prostitute speaks to her pimp" ''(possible defamation)''
*An identifiable child, entitled "An obese girl" ''(potentially derogatory or demeaning)''
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*Partygoers at a private party, unless press is specifically invited ''(unreasonable intrusion)''
*Nudes, underwear or swimsuit shots, unless obviously taken in a public place – even if the subject's face is obscured ''(unreasonable intrusion)''
*Long-lens images, taken from afar, of an individual in a private place ''(unreasonable intrusion)''

== Removal requests == <!--T:58-->

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The subject, photographer, or uploader of an image may request that it be removed from Commons. The reasons for removal may include such things as "It causes embarrassment" or "It was published without my consent", etc. Generally, images are not removed simply because the subject does not like them, but {{localized link|<tvar|admin>Commons:Administrators</>|administrators}} are normally sympathetic to removal requests if good reasons can be given. In any case you may address a removal request through the normal public review process of a {{Localized link|<tvar|dr>Commons:Deletion requests#How_to_list_deletion_requests</>|deletion request}}. If discretion is required, a deletion request explaining this may also be sent privately through {{Localized link|<tvar|link>Commons:Contact us/Problems</>|Commons:Contact us/Problems}}.

== Other image sources == <!--T:60-->

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Photographs with free licences that are  hosted on other websites (such as Flickr) are often uploaded to Commons by users other than the photographer. This can make it difficult to ascertain whether consent was given. A free image licence only covers the photographer's rights and says nothing about the subject. It may be necessary to contact the owner of the photographs regarding permission from the subject, even though the licence means we do not need the photographer's permission.

== See also == <!--T:62-->

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* [[<tvar|link1>wmf:Resolution:Biographies_of_living_people</>|Issues involving living people in WMF's BLP resolution]]
* [[<tvar|link2>wmf:Resolution:Images_of_identifiable_people</>|WMF's May 2011 resolution regarding subject consent for images of identifiable living people]]
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* {{Localized link|<tvar|link1>Commons:Non-copyright restrictions</>|Commons:Non-copyright restrictions}} - other non-copyright restrictions
* {{Localized link|<tvar|link2>Commons:Patient images</>|Commons:Patient images}} – on issues relating to medical images of identifiable people
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* {{Localized link|<tvar|link1>Commons:Personality rights</>|Personality rights}} – essay on personality rights
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* [[Commons:WikiProject Identifiable People]]
* {{Localized link|<tvar|link2>Commons:Photographs of identifiable people/checklist</>}}
* [[meta:Wikilegal/Uploading Individuals' Photographs on Wikimedia Commons]]

== External links == <!--T:67-->

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The following websites discuss the rights of photographers taking photographs in public places:
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* '''Australia (NSW) - ''' [http://4020.net/words/photorights.php Australian street photography legal issues]
* '''Canada -''' [http://www.capic.org/copyright.html Canadian Photographers Coalition on Canadian Copyright Legislation ]
* '''Canada -''' [http://ambientlight.ca/laws.php Photography laws]
* '''Czech Republic''' - [http://www.oou.cz/index.php?file=dotazy/zverejnovani_fotografii_v_propagacnich_materialech Using photographs in advertising], [http://www.odposlechy.com/pravni-rozbor/ Legality of monitoring of people], [http://www.policie-cr.cz/184-porizovani-zvukovych-a-obrazovych-zaznamu-prislusniku-policie-cr-ve-sluzbe.html Recording policemen on duty]
* '''Germany - ''' [[:de:Recht am eigenen Bild|Recht am eigenen Bild]]
* '''Greece - ''' [http://greeklaws.com/pubs/uploads/2795.pdf The right to one's image]
* '''New Zealand -''' [http://www.austlii.edu.au/au/journals/PLPR/2006/2.html Unlawful Photography in Public Places: the New Zealand Position]
* '''UK - ''' [http://web.archive.org/web/20100420042849/http://www.sirimo.co.uk/2009/05/14/uk-photographers-rights-v2 Photographers Rights Guide v2] (archive version)<!-- dead at 2012-03-06 --> by Linda Macpherson LL.B, Dip. L.P., LL.M  (a freelance legal consultant specialising in Media Law and Intellectual Property Law). See fourth column in the PDF.
* '''US - ''' [http://www.krages.com/phoright.htm A Downloadable Flyer Explaining Your Rights When Stopped or Confronted for Photography] and [http://rcfp.org/photoguide Photographers' Guide to Privacy (1999)]

== References ==
{{Reflist}}
{{TNT|Commons policies and guidelines}}

[[Category:Commons licensing help]]