The right to reproduce an image is very complex, pulled between the right to a private life on the one hand and freedom of information on the other. The legislation has continued to expand, as a result of new legal precedents, inspired mainly by the decisions of the European Court of Human Rights.
It is, however, very difficult to find common denominators between members of the European Union. Most European countries have very loose legislation, apart from Belgium and Germany, which are more protective towards victims whose image privacy rights have been violated.
The French law only sanctions when the photograph taken infringes a person’s private life. It is recognised that there are few French laws governing the publication of press photos and these are not very specific. They are mainly based on the general principles of ‘respect for the dignity of the person’ and the ‘protection of private life’.
Image privacy rights do not exist as such and it is for the person who is objecting to the publication of a photo, when it appears, to prove before the law that a wrong has been incurred.
Consequently, the body of case law on the subject is founded on the assessment of the news value provided by the circulation/publication of an image.
But, it is - in theory - forbidden to publish photos of military areas, of handcuffed people or of minors implicated in judicial matters (see Droit à l’image, droit de l’image « Right to an image, right of an image », Philippe Gauvin. CNDP, 2010)
There is no particular Brazilian legislation. The news media hides the faces of minors with transparent or black bands simply to comply with the general law regarding the status of children and teenagers.
Two articles from the Belgian penal code forbid any reproduction of photos or images of certain categories of people:
Article 378b forbids identifying victims of sexual crimes unless the victim has given written permission or on condition that the king’s prosecutor has given permission for the purpose of criminal research.
Article 433b forbids identifying a minor who has committed a crime or about whom the juvenile judge has imposed a measure (not only criminal but also civil, e.g. housing in a family or institution).
Failure to comply with these two articles is punishable by a prison sentence of between two months and two years or a fine of 300 - 3 000 euros.
In addition, in September 2010 the Flemish press council (Raad voor de Journalistiek) emphasised the fact that the non-identification of these two categories of people is not only a legal obligation but also a question of professional ethics.
Spanish law does not have any ruling on the circulation of photos or images. It simply evokes the necessity of respecting the presumption of innocence. Any use of an image remains at the discretion of the journalist who makes the decision, referring to different professional codes and charters. In previous years, the media has paid particular attention to the image of children: when published, their faces are generally blacked out to protect their identity.
There is no British law regarding image privacy rights. However, people who feel their image rights have been violated can instigate legal proceedings on the grounds of defamation and breach of confidence.
The origin of image privacy rights goes back to the German law of 1907 regarding author’s rights for figurative arts and photography.
The publication of a photo of Bismarck on his deathbed led to the legal protection of personal images.
In contemporary German law, the respect of image privacy rights is a civil responsibility. The judge has to reconcile this right with the principle of freedom of information. By referring to legal precedents, it is possible to distinguish three hypotheses where the image privacy rights apply. Firstly, the hypothesis where the person photographed is by their nature a public person and whose life and image belongs to contemporary life. They have no recourse when their image privacy rights are violated. Secondly, people whose lives become public by chance and arouse the interest of the general public for a short period. The last hypothesis concerns private people for whom the protection of their image is absolute (re. anonymous memoirs) .
De Standaard : A question of balance
On the one hand, there are legal criteria which the newspaper adheres to.
On the other hand, the newspaper systematically seeks a balance between freedom of information and using gratuitous, sensational images. Regular discussions take place between the Editor-in-chief and the photo manager to decide whether a photo should be published or not.
Some published images provoke criticism from readers, such as “distressing for children to look at”. The mediator would respond with “De Standaard is not intended for children.” Sometimes, in order to report horror, the horror sometimes needs to be shown but precautions need to be taken. The most appropriate photos should be used, in other words the most relevant to the news.
Often, there is a consideration of the need to respect privacy, for instance when pictures show a public place, including people who are not necessarily involved in the story that is being reported. It is difficult and sensitive work and the responsibility is shared collectively by the members of the editorial hierarchy.
Europe 1 : Information not provided
France 24 : According to the country in which it is broadcast
Each case is different. The head of a channel can refuse images because they are violent.
On the other hand, pictures considered banal and normal on French and English channels may be considered shocking in the Arab-speaking world. Most of the images on the website come from Agence France Presse. France 24 does not use Google Images unless we have access to the source material.
France 24 can resize an image but not crop it and extract an image from a video but not retouch it.
Photomontages are forbidden except to place two people side by side in the same frame.
Le Monde : Nothing is formalised
The newspaper does not hold any photos internally.
It is forbidden to retouch any photos.
Ouest France : Above all, the dignity of the person involved
In addition to the demands of the law, Ouest-France, does not publish any humiliating or degrading photos of people, remaining true to the newspaper’s values.
Berliner Zeitung : There is a law and the press code
The criteria for the publication of photos are the same as for the treatment of general news and ‘news in brief’. These are defined by the law relating to the rights of the individual and by the German press code concerning the respect for the dignity of crime victims, etc.
Litigation cases are also discussed at editorial meetings where the Editor-in-chief will make the final decision.
The photo caption informs readers if the source or conditions in which photos supplied by press agencies are uncertain (for example, images from the war in Syria that cannot be checked).
ZDF : Those of the law
The Irish Times : The in-house culture
Retouching is not permitted, photo-montage is banned, outside of a few clearly stated rules. In keeping with the in-house culture which highlights the importance of avoiding shocking images, the Irish Times does not print images of dead bodies or blood.
Here, regular exchanges mean there is no automatic decision making. Each sensitive image is discussed and the decision to print a photo or not is jointly taken.
Polskie Radio, kanal 3 : Not relevant
BBC : According to public sensitivity
Every two or three years the BBC brings together panels of viewers to explore their level of tolerance to violence depending on the type of programme and the time it is shown. We have found in this way that BBC audiences have more tolerance to violence in a documentary than in a News broadcast.
Infographics may be inserted into images but they are clearly recognisable as such.
The Guardian : No voyeurism
The newspaper endeavours to respect individuals and avoids voyeurism but images that help to communicate an important story will be published.
The Guardian will show photos of a person in handcuffs.
The newspaper authorises the type of retouching that can be done in a classic dark room. The light in a picture can be reworked but a person cannot be added to it.