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Rattigan
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PostPosted: Wed Sep 25, 2013 2:42 pm    Post subject: Sharing on Facebook Reply with quote

I edit a local community news website, and I have a Facebook page and several groups related to it.

A reader recently uploaded vintage photos of a party to one of the groups, and someone complained that a relative was angry because she was in one of the photos and didn't want them online.

The uploader removed all the photos and explained that he now realised "you must get permission from any living person on a photo before it can be published online."

I guess this isn't strictly a copyright question; so far as I know they were the uploader's own family photos, and therefore he and his family owned the copyright (depending how old the photos were).

But is there any legal basis to his claim that "you must get permission from any living person on a photo before it can be published online"?

I'm speaking in terms of Joe Bloggs sharing stuff; not publishing something to a website for advertising or commercial reasons, say.
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AndyJ
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PostPosted: Wed Sep 25, 2013 4:17 pm    Post subject: Reply with quote

Hi Rattigan,
Since there is the tiniest copyright aspect to your question, I expect we'll get away with answering it here. But as you have identified this is all about privacy and what the Americans (and some European countries) refer to as a Right of Publicity.
There is no general law of privacy in the UK. The main protection we have is Article 8 of the European Convention on Human Rights, which was bought into UK law through the Human Rights Act 1998.
Article 8 says that everyone is entitled to respect for their private and family life, their home and their correspondence. This is a rather nebulous concept, and if the Article is strictly interpreted it really only applies to public bodies having to respect this right, although the courts have increasingly given it much wider scope.
The recognised test for what constitutes private and family life, is whether the subject had a reasonable expectation of privacy at the time of the alleged intrusion. So for instance it is perfectly legal to take photographs of people out in a public place without their permission. But this is not an unqualified freedom. For instance in the Naomi Campbell case, the newspaper concerned was judged to have abused Miss Campbell's Article 8 rights when they published a photograph of her attending a drug rehabilitation session, even though the picture was taken in a public place*.
So returning to the publication of the photograph of the party which seems to have upset one of the participants, I suspect it would be hard establish that there had been a strong expectation of privacy at an event like a large party with dozens or maybe hundreds of guests**, but if it had been a quiet family gathering held at home, then a court might well feel that was a 'private' event and some justifiable expectation that photographs taken there would not be published for the whole world to see. This might be an even more likely outcome since the event was a long time ago before social media websites had been invented. Clearly today's Facebook generation would generally have little expectation that such photographs would not make their way onto Facebook or Twitter, and so they would actually need to take active steps to avoid this happening.
But there is certainly no general rule that anyone's permission would be required where there was no reasonable expectation of privacy.
Oh and the copyright connection? Well if photographs are commissioned for private and domestic purposes (for example wedding pictures or a children's party at home) then although the photographer owns the copyright in the pictures, he may not publish them or otherwise make them available to the public without permission from the person who commissioned them (Section 85 CDPA 1988).


*The Editor's Code enforced by the Press Complaints Commission and which is supposed to govern the behaviour of all the major newspapers, goes further than the HRA in clarifying that "private places are public or private property where there is a reasonable expectation of privacy"

** When in 2001 Michael Douglas and Catherine Zeta Jones sued Hello! magazine for publishing unauthorised pictures of their wedding, their claim to a breach of privacy under Article 8 failed, although they were successful on other grounds. Afternote. Apologies but I am having problems with getting BB Code to correctly recognise the URL for a link to the Michael Douglas case. If you go to Wikipedia and type "Douglas v Hello! Ltd" into the search box, it will come up with the correct article. BB Code doesn't like the character ! within URLs.
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Rattigan
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PostPosted: Thu Sep 26, 2013 8:36 am    Post subject: Reply with quote

Thanks so much for a very thorough reply.

The incident in the Facebook group caused quite a storm among members. In response, rather than go into the details of the law, I've posted this reminder:

Quote:
1) Please only post photos that you took or that belong to you;
2) In the case of vintage photos (pre-sixties) that may no longer be in copyright, please link or credit the website or person you got them from;
2) Use common sense and courtesy regarding photos of other people; if someone features prominently in a photo, you may want to ask them first to avoid any embarrassment.


Thanks again, much appreciated.
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AndyJ
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PostPosted: Thu Sep 26, 2013 6:16 pm    Post subject: Reply with quote

Hi Rattigan,
That sounds like a sensible move, although you may want to take a look at paragraph 2. A photograph taken in the 1960s (I assume you didn't mean the 1860s) would still be in copyright today. The term is based on the author's lifetime plus 70 years from the end of the year in which he died. So even if a photograph was taken on 1 Jan 1960 and the photographer died the next day, copyright would run until midnight on 31 December 2030.
There is really no safe cutoff unless it is known that the photographer died in 1942 or earlier. Conceivably a photograph taken in 1860 would be safe, but only because copyright law then was somewhat different!
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Rattigan
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PostPosted: Tue Oct 01, 2013 9:49 am    Post subject: Reply with quote

AndyJ wrote:
Hi Rattigan,
That sounds like a sensible move, although you may want to take a look at paragraph 2. A photograph taken in the 1960s (I assume you didn't mean the 1860s) would still be in copyright today. The term is based on the author's lifetime plus 70 years from the end of the year in which he died. So even if a photograph was taken on 1 Jan 1960 and the photographer died the next day, copyright would run until midnight on 31 December 2030.
There is really no safe cutoff unless it is known that the photographer died in 1942 or earlier. Conceivably a photograph taken in 1860 would be safe, but only because copyright law then was somewhat different!


Thanks for that. I've rather confused myself, as I looked into to this a few months ago and read something stating that in UK law, photographs are treated differently under copyright. I think it said 50 years from when the photograph was taken.

I've no idea where I read that or why, if it was wrong, I took it as authoritative, as I'm usually on the ball with these things. I will try and dig it out and see where I went wrong!

Cheers.
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