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This page is considered anofficial guideline on Wikimedia Commons.
It illustrates standards or behaviors which most editors agree with in principle and generally follow. Feel free to update the page as needed, but please use thediscussion page to propose major changes.
When dealing with photographs of people, we are required to consider the legal and moral rights of the subject. These rights may restrict or impose obligations on those taking, uploading or re-using a photo. These issues are quite distinct from the copyright status of the photo. A Creative Commons licence or public domain status, for example, means that thecopyright owner (usually thephotographer) has waived or lost certain rights and thattheir permission to use the photo is not required. However, this does not affect any rights belonging to thesubject of the photograph.
Publishing a photo of an identifiable person in a private place usuallyrequires consent, and Commons expects this even if relevant laws do not require it. In many countries (especially English-speaking ones), publishing a straightforward photo of an identifiable person in a public place usuallydoes not require consent, provided that the use isnon-commercial. Commercial use (which has a different meaning here than it does for copyright) usuallyrequires consent. However, the consent requirementsvary by country; in some countries, eventaking a photo requires consent. Consent requirements may also depend on other factors.
In most countries, these issues only affect photos where the person is identifiable and still alive. However, even if the person is unidentifiable or has died, certain legal and ethical issues may remain.
Commons requires photos to respect the legal rights of the subject in all of the following countries: (a) the country in which the photo was taken; (b) the country from which the photo was uploaded; (c) the United States (where Commons images are stored). The legal issues that may arise vary by country; this section gives general advice.
The main legal rights of the subject arepersonality rights, which consist of the right of publicity and the right of privacy. These rights generally apply to subjects who are still alive, but may also apply to subjects who have died. The subject also has a legal right to not bedefamed.
Re-use of photos should respect laws both where the photo is taken and where it is re-used. The subject may have additional legal rights, over and above those enforced here, which may restrict certain re-uses. In many cases, the photo description warns re-users about this using the{{Personality rights}} template.
Main:COM:personality rights § Likeness and persona
Theright 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 licence 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 advertising/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.
Theright 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 about photographs vary from country to country. Images must not unreasonably intrude into the subject's private or family life.
The law on privacy concerning photographs can be crudely divided into whether the photograph was taken in a private or public place. Aprivate place is somewhere the subject has a reasonable expectation of privacy while apublic 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.
In the United States (where the Commons servers are located), consent is not as a rule required to photograph people in public places.[1] 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.
In many countries the subject's consentis needed to just take a picture, and/or to publish it and/or to use it commerciallyeven 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 the section oncountry specific consent requirements for details.
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.
In some countries,proportionality (fair use) is the main legal criterion of all exceptions. That means usual practices are admitted and tolerated by the law.
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.
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 essayCommons:Patient images.
Commons also respects the moral rights of the subject, even when not legally required to do so. These rights are reflected in theUniversal Declaration of Human Rights, Article 12:[2]"No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation." Respecting these rights involves applying common decency and respect for human dignity. These issues are subjective and may depend on various factors, including the nature of the photo, the location, and the notability of the subject.
Sexualized photos that lack consent, sometimes called "creepshots", are morally unacceptable. Other photos, even if not sexualized, may also be morally unacceptable; examples include "downblouse" or "upskirt" photos or telephoto shots of nude sunbathers.
The way a photo is taken may make it permanently unacceptable, in the absence of consent, regardless of how it is edited. In particular, such photos remain unacceptable even if the subject is made unidentifiable.
In extraordinary cases, a photo's moral issues may be outweighed by itseducational value. Commons may apply this principle in the same way as quality newspapers may apply a "public interest" test. This principle should be applied only where the photo cannot be replaced by a consensual equivalent and only where the photo'sinherent educational value is sufficient to outweigh its moral issues. It is not sufficient for the photo to be in use on other Wikimedia projects. Commons is notrequired to hostany photo of a person, and may delete doubtful photos regardless of educational value.
Some venues or events have "house rules" which apply to photography. For subjects other than people, Commons ignoressuch rules, regarding them as a matter between the photographer and the venue or event organizer. For example, a museum may prohibit photography, but Commons would ignore such rules when deciding whether to hostphotographs of art inside that museum. However, when house rules provide an expectation of privacy, Commons may respect such rules, even though it is usually not legally required to do so. In such cases, a photo of an identifiable person at that venue or event, where the subject has not consented to the photo being uploaded, may be deleted.
For example, while many conferences and conventions are considered public, some have photography policies that provide an expectation of privacy.Wikimania, the international conference about Wikimedia projects, allows attendees to use colored lanyards to indicate whether they consent or object to being photographed. Photos depicting identifiable people at such events, where those people are wearing "no photography" lanyards, are routinely deleted.
There are three main aspects of dealing with a photo: taking, uploading and re-using the photo. These aspects have separate consent requirements. In particular, consent to take a photo does not necessarily imply consent to upload the photo. It is the uploader's responsibility to ensure that any required consent was given.
Consent to take a photo is not consent for the photographer to do what they like with the photo. A photo 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. For example, a model may have consented to a photo being used in a personal portfolio, but may not have consented to the same photo being published on the Internet.
An example of consent that is too restrictive for Commons would be a typical patient photography consent form, which may only allow the photo 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 amodel release, in which the subject gives up their right of publicity.
Commons may make certain assumptions about when consent has been given. At the most basic level, a subject looking at the camera and smiling would normally be assumed to have consented to the photo being taken. In some circumstances, however, verbal or even written agreement may be required. Where the subject of the photograph is also the photographer and/or uploader, consent is also normally assumed.[3]
However, some subjects are unable to consent, for example minors or people with limited mental capacity. In these cases, consent must be given by the parents or responsible guardians where it is required.
Normally, it is sufficient that the uploader asserts that appropriate consent was given. Where the subject is identifiable, the{{Consent}} template may be used for this purpose, but is not required. Please refer to thetemplate documentation.
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 onCommons:Country specific consent requirements or by clicking on country links in the table.
| Country/Territory | Take a picture | Publish1 a picture | Commercially2 use a published picture |
|---|---|---|---|
| Afghanistan | No | Yes (with exceptions) | Yes (with exceptions) |
| Argentina | No | Yes (with exceptions) | Yes (with exceptions) |
| Australia | No (with exceptions) | No (with exceptions) | Yes |
| Austria | No (with exceptions) | No (with exceptions) | Yes |
| Azerbaijan | Yes | Yes | Yes |
| Belgium | No | Yes (with exceptions) | Yes |
| Brazil | Yes | Yes | Yes |
| Bulgaria | No | No | Yes |
| Canada | Depends on province | Yes (with exceptions) | Yes |
| China, People's Republic of | Yes (with exceptions) | Yes (with exceptions) | Yes |
| Taiwan | No | No (with exceptions) | Yes |
| Czech Republic | Yes (with exceptions) | Yes (with exceptions) | Yes (with exceptions) |
| Denmark | No | Yes (with exceptions) | Yes (with exceptions) |
| Ethiopia | No | Yes (with exceptions) | Yes |
| Finland | No | Yes (with exceptions) | Yes (with exceptions) |
| France | Yes (with exceptions) | Yes (with exceptions)[4] | Yes |
| Germany | No (with exceptions) | Yes (with exceptions) | Yes (with exceptions) |
| Greece | No | No | Yes (with exceptions) |
| Hong Kong SAR | Depends on circumstances | Depends on circumstances | Depends on circumstances |
| Hungary | Yes (with exceptions) | Yes (with exceptions) | Yes (with exceptions) |
| Iceland | No | No (with exceptions) | Yes |
| India | No | No (with exceptions) | Yes (with exceptions) |
| Indonesia | Yes (with exceptions) | Yes (with exceptions) | Yes (with exceptions) |
| Iran | No (with exceptions) | No (with exceptions) | No (with exceptions) |
| Ireland | No (with exceptions) | No (with exceptions) | No (with exceptions) |
| Israel | No | No (with exceptions) | Yes |
| Italy | No | Yes (with exceptions)[5][6][7] | Yes[8][9] |
| Japan | Yes (with exceptions) | Yes (with exceptions) | Yes (with exceptions) |
| Libya | No | Yes (with exceptions) | Yes |
| Macau SAR | Yes (with exceptions) | Yes (with exceptions) | Yes (with exceptions) |
| Mexico | No | Yes | Yes |
| Netherlands | No | No (with exceptions) | No (with exceptions) |
| New Zealand | No | No | Yes |
| Norway | No | Yes (with exceptions) | Yes (with exceptions) |
| Peru | No | Yes (with exceptions) | Yes (with exceptions) |
| Philippines | No | Yes (with exceptions) | Yes |
| Poland | No | Yes (with exceptions) | Yes |
| Portugal | No (with exceptions) | Yes (with exceptions) | Yes |
| Romania | No | Yes (with exceptions) | Yes (with exceptions) |
| Russian Federation | No | Yes (with exceptions) | Yes (with exceptions) |
| Singapore | No (with exceptions) | No (with exceptions) | No (with exceptions) |
| Slovakia | Yes (with exceptions) | Yes (with exceptions) | Yes (with exceptions) |
| Slovenia | No | No | Yes |
| South Africa | No | No | Yes |
| South Korea | Yes | Yes | Yes |
| Spain | Yes | Yes | Yes |
| Sweden | No | No | Yes |
| Switzerland | Yes | Yes | Yes |
| Syria | No (with exceptions) | Yes (with exceptions) | Yes |
| Turkey | Yes (with exceptions) | Yes (with exceptions) | Yes (with exceptions) |
| United Kingdom | No | No (with exceptions) | Yes |
| United States | No | No | Usually (although laws differ by state) |
| 1:In this context of consent requirements, "publish" refers to "making public" and is separate from the term "publish" as may be defined elsewhere (e.g. U.S./U.K. copyright law). 2:In this context of consent requirements, "commercial use" is separate from, andnot in reference to, licensing conditions that may prohibit commercial use (non-commercial licenses). Often commercial use in this context is contrasted with "editorial use", with the former referring to advertising and marketing purposes and the latter referring to news reporting and education even if made with a profit motive. | |||
The degree to which a subject is identifiable varies. A photo 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 photo, clues may be obtained from the title, description, origin, source URL, and metadata (including, but not limited to, the geolocation and date). The greater the privacy issues with photo, the more weight should be given to the risk of identification by non-obvious means. Whether the person is the main subject of the photograph, or a mere bystander or background detail is another important factor.
The risk of identification can be minimised by not including certain information in the description. However, some details regarding the origin of the photo (such as source URL and author) may be required by the source photo 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.
It is better to obtain consent than to attempt to anonymise a photo 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.[10] Pixelated features can sometimes be revealed by squinting one's eyes. Certain seemingly irreversible visual alterations such as applying a "twirl" effect over a subject's face may in fact be reversible.[11] 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.
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.
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.Content-based image retrieval engines such asTinEye orGoogle 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 and searching for similar images.[12]
The following examples do not require consent in many countries:
The following examples typically require consent:
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, butadministrators 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 adeletion request. If discretion is required, a deletion request explaining this may also be sent privately throughCommons:Contact us/Problems.
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.
The following websites discuss the rights of photographers taking photographs in public places: