What is the right to one’s image?
Your image is being shared. Some people may be less concerned about that than others, but that does not mean you have to accept it without question. In Belgium, you have a right to your image. This Wanted Wiki explains what that means in practice.
The right to one’s image is a personality right that is closely linked to the right to privacy. In Belgium, this right is now supported in particular by Article 22 of the Constitution and Article XI.174 of the Code of Economic Law. The latter provides that, in principle, a portrait may not be reproduced or communicated to the public without the consent of the person portrayed. If the image is a photo or video through which a person can be identified, the GDPR may also apply, because such images can qualify as personal data.
In practice, this means that, as a rule, you decide whether someone may take a targeted photo or video of you and whether that image may be used or shared. Consent must be freely given, specific, informed and unambiguous. In addition, consent to being photographed or filmed is not automatically the same as consent to the publication or further distribution of those images. To avoid disputes, that consent should therefore be recorded as clearly as possible.
Not every image is assessed in the same way, however. For targeted images, where you are the main subject, consent will usually be required. For non-targeted images, which mainly show a general atmosphere or a group without specifically highlighting one person, clear prior information may, in certain contexts, be sufficient. Even then, the concrete circumstances must still be assessed.
Protection of the right to one’s image.
If your right to your image is infringed, several courses of action are available. Often, a first step is to request that the relevant photo or video be taken offline or no longer be shared. If the images involve personal data, you may in some cases also rely on your rights under the GDPR, such as the right to information, the right to object and the right to erasure.
If the infringement continues, you can bring the matter before the courts. Depending on the circumstances, a judge may, among other things, award damages, order the cessation or removal of the images, or prohibit any further distribution. In an appropriate context, a complaint to the Belgian Data Protection Authority may also be relevant if the processing of the images violates the GDPR.
Article XI.174 of the Code of Economic Law remains an important legal anchor point in this respect. In principle, the author, owner or holder of a portrait may not reproduce it or communicate it to the public without the consent of the person portrayed. That protection also continues for twenty years after the death of the person portrayed, in which case their successors in title may take action.
The fact that consent has been given does not mean that every later use is automatically lawful. Consent must be sufficiently clear as to its purpose and the permitted use. In addition, under the GDPR, the data subject may in principle withdraw consent, although the concrete effects of that withdrawal must always be assessed in light of the agreements made, the context and any other legal grounds on which the processing is based.
Limits.
The right to one’s image is not absolute. It sometimes has to be balanced against other rights and interests, such as freedom of expression and the right to information. Public figures will therefore have to tolerate more when images relate to their public life and contribute to a matter of public interest or informative debate. That does not mean, however, that any use is allowed, especially where the image is used in a purely commercial, degrading or misleading way.
Being in a public place does not automatically mean losing all control over your image either. The fact that a photo was taken in public does not mean it may simply be published freely or used commercially. Relevant factors include whether the person is the main subject of the image, whether the image is targeted or non-targeted, the context in which it was taken and whether the publication is proportionate.
There may also be exceptions where a specific legal basis exists, where a task in the public interest must be carried out, or where a legitimate interest outweighs the interests of the person concerned. Such exceptions must, however, be assessed strictly and carefully.
Finally, it is important to stress that today the right to one’s image can no longer be viewed separately from data protection law. Especially in the case of online publication, social media, facial recognition, databases and the reuse of images, a double assessment is often needed: one under the classic right to one’s image and another under the GDPR.
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