Unauthorized Photographs: The Rights Of The People We Capture

By Deborah Meltzer, June 9th, 2020

We live in the digital age of smartphones and social media, where the large scale capturing and sharing of photographs has become a global run-of-the-mill form of communication and expression. The rights in these photographs are typically subject to the licensing schemes of the various social media platforms to which they are posted. This is because the authors of these works, the photographers, own copyright in the images they create. However, on the other side of the lens, what frequently gets overlooked are the rights of the people in the photographs as opposed to the ones taking it. This is not an unfamiliar concept. For instance, the Duke and Duchess of Sussex have recently made headlines regarding the unauthorized use of their image by various media outlets.

When it comes to celebrities and other public figures, the laws across Canada have established various personality rights to protect these individuals from the exploitation of their image or likeness. That said, the law is less clear as to the particular rights of private citizens who are the subject of an image to which they did not consent. In Canada, the use of an individual’s image can be unlawful where:

(a) an individual’s name, reputation, or likeness is commercially exploited; or

(b) an individual’s right to privacy has been violated

These wrongs are actionable under the tort of appropriation of personality and provincial privacy torts.

Commercial exploitation of an image or likeness

The tort of appropriation of personality most commonly protects the right of a celebrity or other public figure against the use of their image or likeness for a commercial purpose without their consent. This stems from the idea that a person should have the exclusive right to market and/or capitalize on their personality and image. This is of course subject to certain exceptions (e.g., biographies, plays, books, etc.) where the purpose is to provide insight into that individual (see for example Gould Estate v Stoddard Publishing, [1998] O.J. No. 1894 (ONCA)).

The case law has established that to succeed in the tort of appropriation of personality, the following criteria must be met:

1. The use of the image or likeness must be for a commercial purpose (see Athans v Canadian Adventure Camps Ltd. [1977] O.J. No. 2417 (Ontario Supreme Court); and

2. The individual (plaintiff) must be clearly and primarily captured in the image (see Krouse v Chrysler Canada Ltd. et al., 13 C.P.R. (2d) 28 (1973 ONCA))

While this tort is technically available to non-famous people, it is obviously less likely that an image of a person without notoriety would be commercially exploited. That said, with respect to individuals with professional designations, their professional reputation is protected under the right of personality. For instance, in Hay v Platinum Equities Inc. 2012 ABQB 204, an accountant’s signature was unlawfully used to secure financing for a loan and the Court held that professional reputation for commercial exploitation is akin to celebrity name and likeness.

Privacy rights

In Canada, individuals have the right to a reasonable expectation of privacy. There is a distinction between “personality” – the exclusive right to use your likeness for commercial gain, and “privacy” – the rights of seclusion and the protection of personal information. These concepts, although often intertwined, are legally distinct; a breach of privacy causes personal harm while an appropriation of personality causes commercial harm.

With respect to privacy rights, in Jones v Tsige, 2012 ONCA 32 (“Tsige”), the Ontario Court of Appeal recognized that the tort of “intrusion upon seclusion” exists in Ontario. In that case, the defendant had used her access as a bank employee to view the plaintiff’s banking information over 150 times over a 4-year period. The required elements to satisfy the tort were defined as follows:

1. The defendant’s conduct must have been intentional (this includes recklessness);

2. There must be an “intrusion” - the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and

3. The invasion must be highly offensive to a reasonable person (i.e., causing distress, humiliation, or anguish).

Additionally, the Court stressed that proof of harm to a recognized economic interest is not an element of the cause of action. This means that no actual damage or commercial exploitation is required in establishing intrusion upon seclusion. It is sufficient that the privacy of the plaintiff was egregiously violated.

In relation to control over a person’s image, over 20 years ago in Aubry c. Vice Versa Publishing Inc. [1998] 1 SCR 591 (“Aubry”), the Supreme Court of Canada recognized that the right to one’s own image falls within the right to privacy under section 5 of the Quebec Charter of Human Rights and Freedoms. In this case, the defendant published a picture in a magazine of a woman in a public space, with no defamatory implications in the context of the image or magazine content. However, since the individual was clearly identifiable and her permission was not sought prior to publication, a majority on the Court concluded that the freedom of artistic expression did not justify the infringement of the right to privacy.

Although the civil remedy in Aubry is particular to Quebec in light of the broad scope of the Quebec Charter, the Supreme Court’s determination is nevertheless important because it exemplified that the protection of a person’s image forms part of their personal privacy interest.

In Ontario, in Jane Doe 72511 v Morgan, 2018 ONSC 6607, relying on the reasoning in Tsige, the Ontario Superior Court of Justice adopted the tort of public disclosure of private facts. In that case, the defendant was the ex-boyfriend of the plaintiff, who posted unauthorized intimate/nude photos and videos of the plaintiff on a public website that was viewed over 60,000 times. Paramount to this finding was that the act of publication was highly offensive and not of legitimate concern to the public.

Conclusion

As referenced in Tsige, legal scholars have written of “the pressing need to preserve ‘privacy’ which is being threatened by science and technology to the point of surrender”. The exponential growth of social media platforms and smartphone usage is generating unprecedented privacy concerns which are outpacing current statutory and common law privacy rights. Until Canadian and provincial laws catch-up, photographers and social media users should understand that what they capture, more importantly who they capture, may, one way or another, intrude on someone’s rights. Regardless, when snapping a photo, photographers should exercise best practice and ask for consent of the people they capture.

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