Photography law and photo rights have become a big deal and very topical. Almost everyone has a camera in their pocket all the time and most can take videos as well. People take and share more photos now, than ever before. Photos are taken in public and private spaces, in schools, in the workplace, at concerts, and at events. They are taken of strangers, employees, attendees, children, friends, and customers. And they are shared in many different ways, including on social media. We’re not talking about using people’s likeness, we’re talking about photos.

What is photography law?

This raises many questions:

  • Do you need someone’s consent to take a photo of them? Generally speaking, you don’t in South Africa.
  • Do you need their consent to publish the photo? Generally speaking, you don’t in South Africa.
  • Does it make a difference if it is taken in a public or private space? Yes, it does. There is a much greater expectation of privacy in a private space.
  • Does it make a difference if you are going to use it commercially? Yes.
  • Do you need consent to take a photo of a child? Sometimes, but not always.
  • Is a photograph of my face biometric information and therefore special personal information under the POPI Act? Yes, sometimes it is.

What are your photo rights?

For example:

  • Can you insist that someone takes a photo off their website? It is hard to do it, but possible.
  • What if someone uses your photo to impersonate and defame you on social media? Can you insist that a social network takes a picture down? Generally no.
  • Can you insist that the impersonator take your photo down and delete the account?
  • Can you hold the person legally accountable for defamation and impersonation?
  • Can you stop someone from taking a photo of you? Sometimes.
  • Can you insist that someone deletes a photo they have taken? Sometimes.

Who owns a photo?

There are also many issues regards who owns the photo:

  • Who owns the copyright to the photo? Is it the photographer or the subject matter? What about the photographer’s employer? It depends.
  • Does anything need to be done to establish copyright? No, it is automatic.

Some useful guides

Wikimedia Commons gives some good information, especially a useful table setting out the general position in many countries. Lifehacker gives us some general rules – like if you can see it, you can shoot it. The American situation is quite nicely set out in Krages guide, but the problem is that the laws are different in each country.

If you can see it, you can shoot it

Taking photos in schools

The ICO provides useful guidance about taking photos in schools and has held some schools accountable.

Photos and data protection

The United Kingdom government gives us some useful guidance on the GDPR for photographers. In South Africa, the information regulator has issued a media release regards to consent and photographs. We respectfully disagree with the regulator. A person can rely on any one of the lawful grounds or justifications for processing personal information when distributing photos, that contain the personal information of a subject.

Action you can take regards photography law

  1. Obtain the consent of people in photos by asking us to draft a Photo Consent Form or a Photo Notification. These must be carefully worded to comply with the law in all countries (or a specific country) so as not to be offensive to people. They should be in plain language.
  2. Get clarity on an issue by asking us to give you a legal opinion on a specific issue.
  3. Get a photo of you taken down off a website by asking for our help.
  4. Protect your ownership rights to your photos.