Background
Facts
Decision
Comment
Much has been written about the wider impact of Facebook and other social networking websites, which continue to cause controversy in the sensitive areas of personal data protection and user privacy. A recent case led to controversy over the right to use a person's Facebook picture without his or her prior consent.
Image rights
According to Belgian case law, a non-public person's image rights are infringed when his or her image is used without prior consent. However, in the case of a public person, the right to information limits such rights. Images of a public person may be used without prior consent for informative purposes, but the person's image rights are violated if images are used without prior consent for commercial purposes (eg, in marketing materials) or when such images infringe the individual's right to privacy (eg, where a picture of a public person relates to his or her private life). If the person in question is deceased, similar rules apply: prior consent must be obtained from the deceased person's relatives.
New Code for the Council for Journalism
The Council for Journalism is an independent institution for the self-regulation of the media. It was founded by Flemish journalism associations, publishers and media companies.
The council has adopted a new code which sets out self-regulatory rules of professional ethics. They include rules on respect for the dignity and private life of victims and their families. For example, Article 23 states:
"A journalist respects a person's privacy and does not affect it further than necessary in the public interest of reporting. The journalist is particularly cautious with people in a socially vulnerable situation, such as... victims of accidents and their families."
The guidelines on this article state that the use of photographs of victims is permissible only with the consent of the victim or his or her family, or in light of:
- a serious public interest;
- the gravity and importance of the facts; or
- the victim's fame.
It appears that the principle of prior consent can be set aside when the above terms - particularly 'the victim's fame' - are interpreted broadly. A decision by the council provides an indication of how the guidelines may work in practice: it was asked to rule on the publication by a local newspaper of pictures of a deceased person which were uploaded on Facebook before her death.
Facts
The newspaper published articles - on the front page and page 5 - about the death in a traffic accident of a young woman who had been a leader of the local boy scouts organisation. Both articles were illustrated with pictures of the victim that originated from her Facebook pages. The front-page photograph was the victim's Facebook profile picture, which was accessible to the public. However, the picture on page 5 had been uploaded to a Facebook page which was protected by privacy settings. The author of the article did not seek the consent of the victim's relatives before the pictures were published.
Decision
The council found that:
- the victim could be considered to have been a local public person, given her role in the boy scouts;
- as the victim was well known locally, the picture on the front page could be published in the local newspaper without the prior consent of the victim's relatives; and
- the photograph that had been protected by privacy settings was not public and should not have been used in the newspaper.
The council stated that pictures on Facebook are, in principle, neither public nor publicly accessible. Publicly accessible Facebook pictures are the exception, not the rule. The fact that the journalist had access to one of the victim's pages that was not publicly accessible did not entitle him to publish a picture that he found there without the prior consent of the victim's relatives. Thus, the journalist failed to comply with his duty of due care - he should have known that the picture came from a page that was not publicly accessible, as it is easy to check the status of a page.
Therefore, the council found that the complaint brought by the victim's father in respect of the second picture was well founded.
Comment
This was the council's first ruling on the media's use of pictures uploaded on Facebook. The council distinguished between publicly accessible and non-publicly accessible Facebook pictures, and between Facebook pictures of public and non-public people. The council's threshold for determining when someone is considered a public person is relatively low: apparently being a leader in a youth organisation is sufficient. It could be inferred that as soon as a person has an active role in his or her local society - for example, as an organiser of parties or benefits - he or she can be considered a public person. This decision can be seen as carving out a large exception to the principle of prior consent.
For further information on this topic please contact Sabine Van de Mosselaer at Marx Van Ranst Vermeersch & Partners by telephone (+32 2 285 01 00), fax (+32 2 230 33 39) or email ([email protected]).