The individual image is a unique appearance of a person represented by a set of external characteristics that are perceived as the image of the person as a whole, imprinted in any material form in the form of a photographic image, object of art, in the videos. At the same time it is necessary to understand that the individual image is not only theimage of his/her face, but also personal appearance in general (Appellatedecision of the Altai Regional Court on 21.05.2013 No. 33-3897/2013). According to the existing Russian legislation (Art. 152.1 of the CC of the RF; item 5 of Art. 49 of Russian Federation Law from 27.12.1991 N 2124-1 "On mass media") the individual image must be protected which means a necessity in obtaining the consent of the person whose image may be promulgated and used further.
Use of the image of the individualby his/herapprobation or without that
Protection of individual image as mentionedearlier requires the obligatory receipt of personal consent to use his/her image, however the legislation does not establish an accurate form for such consent. Based on the analysis of legislative arrangements, protection of the individual image is equal to protection of intangible goods and therefore the consent is presentedas a civil transaction which determination of a form must be performed so that identification of the agreeing person will be possible further. Such agreementmay be provided in a written or oral form, and also by course of conduct expressing a will of the person to use, promulgatehis/her image. In case of giving an oral consent it must be evidenced by unconditional proofs testifying to its availability and the consent must be received separately for each specific type, form and purposes for use. Specifying conditions in a consent is preferable (about the term of use of the individual image, the distribution territory, possible ways and restrictions of such use) (Cassational ruling of the Moscow City Court on 22.06.2011 reNo. 33-19056), however, it could be formulated more abstractly, in this case using of the image of the person is allowed only to the extent and in the purposes which corresponded to the actual situation at the time of signing of the consent (item 47 of the Resolution of the Plenum of the RF Supreme Court on 23.06.2015 No. 25 "On application of certain provisions of the section I part I of the CC of the RF by courts") (further – the Resolution of the Plenum of the RF Supreme Court No. 25).
The use of theindividual image after his/her death is possible only by approbation of his/her close relatives (relict/children/parents) and if they are absent, – without such consent(item 49 of the Resolution of the Resolution of the Plenum of the RF Supreme Court No. 25).
The Russian Federation Civil Code also provides for cases in which usingthe individual image without his/her consent would not be constituted as violation of his/her rights:
- When the image is used in the state or public interests. In this case the concept of public interest does not allow broad interpretation and includes any interest shown by audience, but only that which is shown for the purpose of detection and disclosure of threat to the democratic state and civil society, to public security, to the environment (The resolution of the Plenum of the RF Supreme Court on 15.06.2010 No. 16 "On practice of application the RF Law "On mass media" by courts).
- If the image was taken by shooting which was carried out in public areas free for visiting or at visibility event if only the image of the person, further, does not become the main object of use by mass media and other organizations while publicizing the information aboutthe event. However, it should be noted that if there is any general background in the photo besides theindividual image, his/her consent nevertheless must be required if the background is blurred, or the image on the background is distinguished close-up and no other persons or objects are present, and the text material posted along with the photo does not contain information about any public event at which this photo has been taken(Appellate decision of the Moscow City Court on 02.07.2013 No. 11-20707/2013).
- If an individual posed for a fee.But the user who acquired the right to use the image in the activities must have a proof of payment to aperson for posing. (St. Petersburg City Court ruling on 02.04.2013 No. 33-4484/2013).
Separately it is necessary to pay attention to protection of the image of individuals with public status. Despite the fact that their profession is public it does not assume a possibility of using the image withoutpublic person`s consent, except for such use in the state or public interests in order to identify corruption facts, extortion, to preserve statesecurity (Appellate decision of the Moscow City Court on 06.09.2013 No. 11-28616).
Protection of the individual image posted on social media
Due to the growing popularity of various social networks (VKontakte, Facebook, Instagram) the accurate regulation of protection of individuals` images posted on their pages in the global network "Internet" becomes more and more necessary. Nowadays, the question of the necessity of obtaining the person`s consent on using his/her image who posted the photo on a social website open for broad access has not been settled by the existing Russian legislation yet. The RF Civil Code only provides the right of the person whose image is distributed in the“Internet”in breach of clause1 of Art. 152.1, of the CC of the RF to require removal of such image with simultaneous suppression or prohibition of actions directed to its further distribution and use (item 3 of Art. 152.1 of the CC of the RF). However the difficulty lies in the factthat it is almost impossible to find the culprit in the illegal distribution of the image in the global network therefore judicial practice in this area is ambiguous and changes every time depending on the actual circumstances of the case. So in 2012 the Moscow City Court found that posting plaintiff`s photographs on the website openedin access for general public actually expresseshis will on promulgation of the image as well as permission to its assessment, discussion and use(Appellate decision of the Moscow City Court on 30.03.2012 No. 11-2538).By contrast, later in another matter, the same court drew a conclusion that obtaining separate individual permissions to use their images is necessary even if such imagesare posted by the person on social media(Appellate decision of the Moscow City Court on 28.03.2014No. 33-10144).
The disputable issue was partially resolved by the resolution of the Plenum of the RF Supreme Court No. 25 in which personal promulgation ofhis/her image was equated to promulgation by an author his/her work (Art. 1268 of the CC of the RF) that means implementation of such action which making this image the first time available for general public through public display, publication in information sources including the “Internet”. The Supreme Court has also explained that promulgation and general accessibility of the individual image do not remove need of its protection and allow using the specified image without the consent of the depicted person. Circumstances of posting of the individual image in the “Internet” may testifyto such consent if it is provided according to conditions of using the website that photo/image publication includes permission to its further use without receipt a separate special individual consent (item 43 of the Resolution of the Resolution of the Plenum of the RF Supreme Court No. 25).
How to protect the individual`s right to image protection
For the purposes of the provisions of part IV of the RF Civil Code, the specified right to promulgation and further use of the individual image is not a sole power of a person and therefore only general methods of protection established in the Art. 12 of the CC of the RF could be applied in case of its violation (item 7 of the Resolution of the Resolution of the Plenum of the RF Supreme Court No. 5, the Plenum of the RF Supreme Arbitration CourtNo. 29 on 26.03.2009 "On some issues arising in connection with enforcement of part IV of the RF Civil Code").
In case of the detection of illegal placement of his/her image on any “Internet” website the individual needs to contact with an administrator of this website with requirement to remove the image, according to item 3 of Art. 152.1 of the RF Civil Code. If the case goes to trial, the person has the right to sue in district court at the organization`swhich is responsible for placement challenged photos/images or its branch location (Art. 22, 24 of the CPC of the RF) with the requirement of punitive damages based on the placing of his/her photo/image on a certain website. The burden of proof the fact that placement of the image on a particular website caused moral harm lies on the claimant, and the legality of such placement, availability of the personal consent lies on the administration of the website/company responsible for it.
The article was prepared: 30.10.2016
by Tatiana Smirnyagina, junior associate of BRACE Law Firm