It happens daily: we share photos of ourselves, our families and our friends with others on the Web, especially through social websites like Facebook. Or we email photos for various reasons to a long list of recipients. Or we forward photos received from someone else to other family members or friends. What we generally don’t do, is ask the people on the photos permission to distribute the photos. Sure, if the photo is flattering, why would any one object? But what if its embarrassing? How often have you seen photos of yourself on a friend’s website that you would not choose to share with the world at large? But what can you do? How can you enforce your right to privacy?

In terms of South African law, the right to privacy can be infringed by a disclosure or publication of private facts. These could include publication of photos in certain instances. Our courts have in the past held the following to be examples of “wrongful” disclosure of photos:

  • “the unauthorised publication of a photograph of an unmarried woman as part of an advertisement for firearms and ammunition”;
  • “the attempted publication of photographs of the defendants at a sensational trial”; and
  • “the unauthorised publication of a photograph of nurses, of whom two were engaged and one married, giving the impression that they wanted boy-friends”.

It is debatable, but unlikely that publication of a photo you don’t like will qualify as being “wrongful” in law. The courts will consider publication of photos on a case by case basis by looking at the facts of the specific matter. If the photo amounts to pornography, or unlawful activities, other strict legal principles will of course apply.

If one goes further and looks for example at the Facebook Terms of Use, again the mere fact that you do not like a photo posted to the web site, does not mean that Facebook has to remove it. According to their terms they “can remove any content or information you post on Facebook if we [they] believe that it violates this Statement or our [their] policies”. Similar to South African law, whether a particular photo violates the Facebook terms will each time be determined on the particular facts of the matter. But most probably your generally unflattering photos or photos taken during  a time of your life that you would rather want to forget about, won’t qualify.

The best you can do is to try and agree with the person who posted the photo to remove it. If he or she does not respond positively to the request, we can advise you on your legal rights, including your chances of success in legal proceedings.

Copyright infringement is altogether another topic. If a person uploads a photo in which he or she does not own the copyright and without the consent of the copyright owner, it may be a violation of copyright laws. Again, we can help you determine your ownership rights.