The Waterfront Partnership

How Image Conscious Are You?

  How Image Conscious Are You?

  (This article was first published in Copyright World, March 2008)

 Introduction

 In last month's edition of Copyright World, the ongoing US lawsuit alleging misuse of a photograph of a 16 year old Alison Chang by Virgin Mobile from the photo sharing site Flickr to front an advertising campaign[1] was analysed in terms of the effectiveness of the Creative Commons Licence.   Briefly,  Miss Chang had her photograph taken by a third party who then uploaded the image onto a picture sharing website without her knowledge.  Virgin Mobile then used the image in one of its advertising campaigns with the statement "Dump Your Pen Friend". 

Interestingly the action brought on behalf of Miss Chang claims that the unauthorised use of the photograph, amounted to losing the exclusive right of control over her own "image and likeness" which could result in her sustaining injury to her reputation and good name.   Although the case has not yet been heard the facts might easily arise anywhere in the world - the prevalence of internet communication, file sharing and online forums such as Facebook and Bebo mean that these are issues that courts will have to get comfortable dealing with.

In recent years so-called ‘image rights' and the right to privacy have been subject to much media attention through high profile cases.  Claimants have used various causes of action to frame their arguments relating to misuse of their images, including breach of confidentiality and passing off and false endorsement.  Significantly these actions were almost always brought by famous celebrities and understandably many Judges have laboured over the protection applicable to those "who seek to manage their publicity as part of their trade or profession and whose private life is a valuable commodity."

It is now clear that people of celebrity have at least some control over images of themselves, at least in private or controlled circumstances or when it relates to their goodwill and commercial activities, such as providing endorsements.

But what of the Alison Changs of the world - what protection is afforded to a private citizen that is photographed in public and whose image is then subsequently used in an unauthorised manner?  This article looks at the state of the current law in the UK and asks whether we need to be more conscious, and careful, of how our own images are used.

An individual's rights

Image rights are taken to refer to any aspect of someone's personality including their name, likeness, style, characteristics, voice or indeed anything that distinguishes them from someone-else.  However, unlike the US or many European jurisdictions, English law does not recognise image rights per se.  There is no statutory law or body of case law that deals with a stand alone right in one's image.  What protection does exist derives from a mishmash of legal concepts - and unfortunately, concepts that are inadequate when taken on their own. 

The exploitation of ‘image rights' is, in reality, often achieved through commercialising products or works in which Intellectual Property Rights ("IPRs") subsist.

The rights typically incorporate:

a)      Copyright;

b)      Moral rights; and

c)      Trade Marks.

Protection does not necessarily have to be through assertion of an IPR but can also be through restricting certain prohibitive actions of third parties.  Particularly relevant here is:

d)      Passing off;

e)      Defamation;

f)        Breach of confidence;

g)      Right to a private family life under the European Convention of Human Rights; and

h)      Data Protection.

Although strictly outside the scope of this analysis it is also worth mentioning the regulations surrounding advertising.

The ASA has issued a set of codes that must be adhered to when advertising in various forms of media. The British Code of Advertising, Sales Promotion and Direct Marketing (CAP Code) applies to non-broadcasting material. Clause 12 of the CAP Code concerns the protection of privacy and recommends that marketers obtain written permission before: (1) referring to or portraying members of the public or their identifiable possessions; (2) referring to people with a public profile; and (3) implying any personal approval of an advertised product[2]. However the CAP Code indicates that prior permission may not be needed when the marketing communication contains nothing that is inconsistent with the position or views of the person featured[3].  The Television Advertising Standard Code (the Code) applies to the UK's terrestrial channels and satellite services provided by broadcaster within the UK. Section 6.5 of the Code states that living people must not be portrayed, caricatured or referred to in advertisements without their permission with limited exceptions.

These codes are two ways in which a person can protect their image rights if they have been exploited through ‘paid for' advertisements (eg, TV, radio billboards, etc).  However, it is important to remember that these are of no relevance where the offending image is on an internet site that has not been paid for and that these agencies are non-statutory organizations with limited powers.  A reference can be made by the agencies to the OFT, and injunctions granted, but they well may be too late to prevent significant harm occurring. Further, damages are not recoverable under any circumstances by the injured individual.

a)      Copyright

Under the Copyright Designs and Patents Act 1988 ("CDPA"), copyright subsists in original literary, dramatic, musical and artistic works. Therefore copyright will subsist in paintings, drawings, photographs, sculptures, dances and mimes.

Copyright arises automatically and is generally owned by the author of the work or his employer (if employed). The owner of the copyright in a work has the exclusive right to copy and issue copies of the work to the public.  Unauthorised reproduction of the whole or substantial part of the work will infringe copyright, and entitle the owner to relief such as damages or an account of profits, an injunction and legal costs.

Determining copyright ownership can be a tricky business and alas it is often the case that the person seeking to protect their image rights (for example the subject of a photograph) is not in any event the owner of the copyright in the work - for example because they did not take the photograph. Notably, under s.85 CDPA a person who commissions the taking of a photograph for private and domestic purposes has the right not to have copies of the work issued to the public or exhibited or shown in public. In some circumstances commissioners are also likely to be the subject - e.g. wedding photographs - and so could be a useful lever to afford some protection.

b)     Moral Rights

Authors of literary, dramatic, musical or artistic works have, in respect of their own works, the right to be identified as the author and to object to derogatory treatment; and further have the right to object to being falsely attributed to a work which is not theirs. Moral rights sit along side certain works in which copyrights subsist and generally attach to and benefit only the author of such works. 

So individuals that find themselves in circumstances similar to Miss Chang are unlikely to be able to avail themselves of any legal right to prevent publication or seek damages under copyright law or by asserting their moral rights.

So what can they do?

c)      Trade Marks

Trade Mark law can be effective way of protecting image rights. Under s.1 of the Trade Marks Act 1994 ("TMA"), a "trade mark means any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings". Image rights that could be protected under Trade Mark law could be your name, a photograph or any graphic that could be said to identify you from someone else.  Common marks are celebrities names and signatures and there are instances of famous individuals seeking to register their image as a trade mark. 

There have been no determinative decisions on the ability to enforce such image trade marks, but there is an inherent problem with such a right.  Images of famous individuals commonly adorn a variety of media, including posters, t-shirts and other merchandise.   Accordingly, therefore, in the eyes of the public such an image is far from being an indication of the source of the merchandise in itself.  Fame would therefore appear to make the person's image less capable of acting as a trade mark for goods that are outside the celebrity's usual trade.

So ironically, whilst the image of an ordinary citizen, such as Miss Chang, may be capable of registration and enforcement, it is of course impractical for such persons to speculatively register their image in respect of all classes of goods or services to prevent unknown future use by third parties.

d)     Passing Off

Passing Off is an action that can be brought where one trader has made misrepresentations which damage the goodwill of another.  Commonly used where the business/person does not hold a trade mark or is not capable of holding a trade mark, a claim for passing off requires that (1) the claimant must have goodwill; (2) there has been a misrepresentation made by the defendant; and (3) the claimant has suffered damage because of this misrepresentation. Passing off has been successfully used when someone's image is incorrectly portrayed as being associated with a particular product or service, thereby damaging their goodwill.

Again because this area has been used for false endorsements, the goodwill in question stemmed from the fame of the celebrity in question - i.e. the value to a company of that person promoting their product.  Again, people in Miss Chang's situation would not appear to have strong grounds for making such a claim for passing off because of difficulties in establishing the presence of any goodwill and ownership and damages thereof.  It is conceivable however, that ordinary individuals might have an element of restricted goodwill (as between colleagues, friends and family) but there is no indication that this would be sufficient to support a passing off action.

e)     Defamation

Any claimant bringing a defamation action needs to prove that any statements that have been made have injured their reputation in the eyes of ‘right thinking members of the public'.  Such statements need to have been published to a third party.

Looking at the picture of Miss Chang, it would be difficult to see why the image in itself should damage her reputation.   Of course there may be an argument that any accompanying statement (such as Dump Your Pen Friend) has such an effect, but defamation would appear to be of limited application for controlling the use of one's image alone.

f)       Breach of Confidence; and

g)     Right to Privacy (ECHR)

Breach of confidence actions have typically protected commercial confidences in respect of which a standard three part test is applied:

(i)                  Does the information have the necessary quality of confidence about it?

(ii)                Has the information been imparted in circumstances importing an obligation of confidence? and

(iii)               Has there been unauthorised use of that information to the detriment of the party communicating it?

As we will see the nature of confidence protected has been recently affected by the right to privacy under the European Convention of Human Rights (ECHR), which was introduced into UK law by the Human Rights Act 1998.  Specifically Article 8 ECHR offers everyone (and not just public figures and celebrities) general protection for their private and family life, home and correspondence from arbitrary interference by the state. This however, must be balanced at all times against Article 10 ECHR which provides that everyone has the right to freedom of expression, which includes the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

Whilst there has been some debate about whether Article 8 is only of effect in respect of the vertical relationship between an individual and the state, the better view is that even between private parties, the Courts will take the role of the state and enforce this right to privacy.

Accordingly, Courts have been more willing to extend breach of confidence actions to personal private information, especially where the wrongful party knows or ought to know that the other person can reasonably expect his privacy to be protected (even if in a public context), and that the unjustified disclosure of private and non-trivial information causes financial damage or distress to the person.

High profile cases such as Douglas & Ors v Hello! have served to highlight how photographs in particular can be an intrusive invasion of privacy.  Breach of confidence (with the Human Rights Act) can protect one's image from unauthorised use and this has provided a remedy for the unauthorised disclosure of personal information[4] This has resulted in breach of confidence being used to protect two distinct areas, privacy and confidential information[5]. In 2004 the courts held that it was an infringement of privacy when the Mirror newspaper took pictures of Naomi Campbell coming out of a Narcotics Anonymous Meeting, even though they did take the view that an individual does not have a right to prevent publication of photographs which feature them except for where the photographs taken were private or offensive in nature[6]. The courts in this case said that private information, such as a photograph could be protected by confidence if it was ‘obviously private' in nature or if its disclosure would cause a person of ordinary sensibilities substantial offence (eg humiliating or severely embarrassing). The most recent case of breach of confidence involving the use of photographs is when Michael Douglas and Catherine Zeta Jones took an action against Hello! magazine for publishing unauthorised photographs of their wedding.  Here their private information appeared to be protected as a commercial property right because of the value it attracted due to their celebrity status[7].

Even though the courts agreed that there was breach of confidence by Hello! Magazine, they were keen to stress that it was a matter of public policy why the law of confidence cannot protect image rights per se or any other unorthodox form of IPRs.

But what of the facts surrounding Miss Chang's photograph - a photograph of an ordinary citizen with no valuable commercial property right in their own image and taken, not in an obvious private place but very much in public?

The European Court of Human Rights view photographs of someone carrying out almost any activity in their daily life as breaching their right to privacy, unless they could be shown to make a contribution to a debate of general interest[8]. At first glance, this case would suggest that the HRA is a sufficient means of protection for the misuse of your image. However, the English first instance courts have chosen not to adopt this ECHR approach but instead to follow the binding principles set down by the House of Lords in Campbell. In confirming that innocuous conduct should not attract the right to privacy, Patten J held that if pictures taken of JK Rowling's son simply walking with his mother down the street qualified for protection, it would be very difficult to see what would not qualify[9].

As it stands therefore, under Campbell and Murray someone in Miss Chang's position would have little hope of successfully establishing that there had been a breach of confidence in contravention of their right to privacy under the ECHR.  However, there does appear to be continuing movement in this area and some commentary indicates that there are still some UK Judges who would interpret the ECHR more widely and adopt Von Hannover (a case regarding Princess Caroline of Monaco) as the decisive authority[10]. 

h)     Data Protection

In practice, many of the relevant court actions reviewed above pleaded not only breach of confidence but also breaches of data protection legislation.

The Data Protection Act 1998 (DPA) ensures that all "data" which identifies living individuals whether relating to a person's individual or business life ("personal data") must be "processed" in accordance with the eight specific data protection principles[11].  Personal data includes by way of example, a persons name, address and likeness (i.e. photograph), and could also foreseeably include secondary data such as "the woman with red hair who lives at no. 37 High Street....".

"Data" refers in a wide sense to any information that is processed by automatic equipment in response to instructions. "Processing" is also construed very broadly under the DPA and includes, obtaining, holding, use or disclosure of personal information, and this covers, for example, the digitisation of an image and subsequent dissemination. 

In the current context the most important of the eight principles is that all personal data must be processed lawfully and fairly.  More specifically: (a) the data subject must have given its informed consent for the personal data to be processed for specific purposes of which it is aware, or (b) failing which the processing is necessary to pursue the legitimate interests of the data controller or third parties unless it could unjustifiably prejudice the interests of the data subject.  There is also a general obligation of ‘fairness', which will not be met if, for example, the data subject has been misled in any way.

Under section 10 of the DPA, a person has the right to prevent personal data from being processed if the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or distress to him or to another, and that damage or distress is or would be unwarranted.  Section 13 further entitles anyone who suffers distress and damage by reason of any contravention to be entitled to compensation for that distress, which is typically very modest.

What qualifies as "personal data" has been the subject of some commentary which has highlighted discrepancies between the intentions of the European Commission and the views of UK Judges in interpreting the transposing UK legislation[12].   In order to overcome some of these divergences, in August 2007 the Information Commissioner has stated in his recent guidance various concepts to help establish whether something is personal data or not[13].   Where information is ‘obviously about' that person then it is likely to be personal data.  Where there data is not obviously about that person the Information Commissioner proposes asking a series of questions in order to establish whether it could considered personal data.   In the context of photographs, emphasis is given to processing for the purposes of learning something about an identifiable individual.

Although an analysis of the guidance is outside the scope of this note it is of interest that, if the ‘obviously about' test is not passed, one of the subsequent questions asks, does the "data focus or concentrate on the individual as its central theme rather than on some other person, or some object, transaction or event?"  If the answer to this question is yes, then it is likely to be personal data.

So where does this leave the likes of Miss Chang?  The Information Commissioner's guidance does appear to be a step in the right direction but much is still unclear.  Unlike a celebrity, a picture of an ordinary citizen does not necessarily have to be about that person.  In Miss Chang's case, the picture is arguably not about Miss Chang per se and so the data would be unlikely to pass this ‘obviously about' test.  What Miss Chang might avail her self of is the fact that she is very much the focus of the picture to the exclusion of almost everything else.  On this basis it looks as though Miss Chang may be able to successfully argue that the image is personal data and so caught by the DPA.

Conclusion

In respect of rights to control his or her own image per se, the protection for the everyman in the UK is limited.  Fame or carrying out an activity appear to be a pre-requisite for bringing an action for breach of confidence although there may be some hope should UK courts depart from Campbell and choose to follow the ECHR's principles as set down in Von Hannover.

Although largely untested, the Data Protection Act would appear to give the best options to someone who has found that a picture of taken of themselves in a public environment is being used for without their consent in an entirely unrelated manner.  But as shown above there are many uncertainties and many circumstances are unlikely to be covered.  What if the picture is a group of three friends and so no one person is the focus of the information?

What is clear is that instances of such image use are sure to increase as the popularity of websites such as Facebook grow exponentially.  What will you do?

 

Rachel Bunn and Mulika Sannie

The Waterfront Partnership

©The Waterfront Partnership 2008

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[1] Susan Chang, as Next Friend of Alison Chang, a Minor, AND Justin Ho-Wee Wong v Virgin Mobile USA, LLC, Virgin Mobile Pty Ltd., and Creative Commons Corporation - a copy of the Plaintiff's original petition can be found at http://lessig.org/blog/complaint.pdf

[2] Clause 13.1, CAP Code

[3] Clause 13.2, CAP Code. The Advertising Standards Authority held that an Easyjet advert with a photograph of Charles Ingram and his wife which had the headline ‘Need a cheap getaway', did not require permission from the Ingram's as the advertisement was consistent with their verdicts of their case where they had been found guilty of cheating on ‘Who Wants to Be a Millionaire", ASA Adjudications, 8 October 2003

[4] Douglas v Hello [2007] UKHL 21

[5] Ibid 15

[6] Campbell v MGN Limited [2004] UKHL 22, [2004] WL 852411

[7] Ibid 15

[8] Von Hannover v Germany (Application No: 59320/00),  (2005) 40 E.H.R.R. 1

[9] David Murray (by his litigation friends (1) Neil Murray (2) Joanne Murray) v (1) Express Newspapers Plc (2) Big Pictures (UK) Ltd [2007] EWHC 1908 (Ch)

[10] See Ash v McKennitt [2006] EWCA Civ 1714

[11] In summary the principles require that the data is: processed fairly and lawfully; held only for specific purposes and not used in a way incompatible with those purposes; adequate, relevant and not excessive for the purpose which the data is being processed; accurate and kept up to date; not kept for longer than necessary; processed in accordance with the individual's rights; kept secure.

[12] See Durant v FSA [2003] EWCA Civ 1746 suggests that personal data must have the subject as its focus and the information should be of a biographical nature

[13] http://www.ico.gov.uk/upload/documents/determining_what_is_personal_data/whatispersonaldata2.htm