Image rights

The right to one’s image is the prerogative recognised to every person to object to the fixation, reproduction and dissemination of his or her image without consent. It is not enshrined in any specific statute, but the courts attach it to the right to respect for private life under Article 9 of the Civil Code, and it ranks among the personality rights. It is weighed against freedom of expression and the right to information, protected by Article 10 of the European Convention on Human Rights, through a case-by-case balancing exercise.

The principle of authorisation

Every person holds an exclusive right over his or her image which allows him or her to object to its dissemination. The authorisation must be specific, that is, it must relate to the intended use, medium and purpose, and an authorisation given for one publication does not extend to another, in particular to advertising or commercial exploitation. The authorisation may be implied where the person posed knowing the intended destination of the images, but the burden of proving it lies on the publisher. For minors, parental consent is required.

Limits arising from the public’s right to information

The right to one’s image yields to the freedom to inform where the image illustrates a current event or a debate of general interest and is directly connected with the subject addressed. Public figures may be depicted in the exercise of their functions, and persons present in a public place may be depicted where they are not singled out or where the photograph illustrates a general subject. The limit remains respect for human dignity, which prohibits the publication of degrading images even in a news context.

The image of property and commercial exploitation

The Court of Cassation holds that the owner of a thing has no exclusive right over its image and may object to its use only where that use causes him or her an abnormal disturbance. The image of property may nonetheless run into the architect’s copyright or trade mark law. The commercial exploitation of a person’s image, in particular that of a model or an athlete, is governed by contracts which organise its term, territory and media. Whether such contracts effect an assignment of an economic right or a mere revocable authorisation remains debated.

Litigation

The court may order any measures appropriate to prevent or bring to an end the infringement, if need be in interim proceedings, and award damages (Article 9, paragraph 2, of the Civil Code). The mere finding of an infringement gives rise to a right to compensation. On the criminal side, capturing or disseminating the image of a person in a private place without his or her consent, and creating a montage with that person’s image, are punished by the Criminal Code, which now also punishes non-consensual deepfakes. The right to one’s image ends on death, the heirs being able to act only against an attack on the memory of the deceased.

Key points

The right to one’s image requires a specific authorisation to be obtained before a person’s image is disseminated, except where the image contributes to informing the public on a matter of general interest and respects dignity. The image of property is protected only in the event of an abnormal disturbance. For any commercial exploitation, draw up a written authorisation specifying the media, the term and the territory, and keep evidence of consent.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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