Freedom of speech or right to privacy?

Earlier in the Legal Question Book I discussed the online use of images, such as photographs. The conclusion was that copying an image to your own website without the photographer's permission, for example, is not allowed and infringes his copyright. It is therefore always important to find out who is the copyright holder of a particular photo and to ask permission before copying the image. In addition to copyright, a photograph may also have portrait rights of the person depicted in the photograph. What about portrait rights?

First, a distinction must be made between commissioned and non-commissioned portraits. A commissioned portrait may not be published without the permission of the person portrayed. This is different in the case of a portrait that is not commissioned. The publication of such a portrait can only be prevented if a reasonable interest of the person portrayed prevents it. Therefore, if a photographer takes a picture of you as a casual passerby or as a visitor at a festival, in principle, this picture can simply be published. Whether you can oppose it depends on the context in which the photo is placed. In any case, a mere invocation of the right to privacy is not sufficient.

This came up again recently in a ruling by the Amsterdam Court of Appeal (ECLI:NL:GHAMS:2017:3247) about a photo that was depicted on the front page of the Volkskrant newspaper. A man with a "Muslim-like appearance" was stopped on his way to Schiphol Airport by the Royal Military Police and a number of military personnel for a check. The next day, a photo of the man appeared on the front page of the Volkskrant, showing the man talking to a member of the Royal Military Police from his car. In addition, in the background of the photo were heavily armed soldiers. On this photo the text was printed in large letters: "Is Schiphol still safe?" and in smaller letters "After the Marechaussee, now the army is deployed for extra surveillance of Schiphol. What else is in store for travelers - and does it help?".

The man took the position that by publishing this photograph without permission, his privacy and portrait rights had been violated and requested De Volkskrant to rectify. When De Volkskrant proved unwilling to do so, the man initiated proceedings. The court awarded the man an advance payment of €1,500 in immaterial damages. De Volkskrant appealed this ruling.

The Court of Appeal put first and foremost that when there is a clash between the right to freedom of expression on the one hand and the right to respect for personal privacy and honor and reputation on the other, it must be determined on the basis of all the circumstances of the case which right carries more weight in a concrete case. As stated above, a person can oppose the publication of a photograph taken without permission if he or she has a reasonable interest in doing so. To determine whether that is the case, a balance must be made between the right to freedom of expression on the one hand and the right to respect for privacy and honor and reputation on the other. It is not the case that either right always takes precedence over the other. It is important, for example, that the press has the task of disseminating information and ideas of public interest; for this, the right to privacy must give way to a certain extent. According to the court of appeal, however, in this case the publication with the photo in De Volkskrant did not contribute to the public debate. The headline, which according to the court of appeal is often observed first, should have been different. By placing the headline in question with the photograph, the impression was created that the man might be related to terrorism and that violated his right to respect for privacy and his honor and good name. The damages awarded by the district court therefore remain intact on appeal.

It can be concluded that an appeal to portrait rights only succeeds if the person portrayed has a reasonable interest in opposing the publication of a photograph. In general, this will not be the case easily, given the right to freedom of expression on the other hand. This does not alter the fact that when posting a photo that shows a recognizable person, it is important to take into account the context in which the photo is placed. The photo of the man in the Volkskrant can be placed in a different context, for example with a different headline, as normal.

This page was last updated on August 16, 2023.