Nowadays, the use of illustrative images (photos, films, drawings, etc.) has become commonplace. Whether it be on websites or in e-newsletters, newspapers, magazines, etc., images are part of our daily lives. But be careful: before you take a photo of someone, for example, you should in principle ask for their permission. Would you like to publish those photos on the internet, in a newspaper or in a magazine? In that case, you must again request the permission of the person concerned. These consequences are part of the right to image.
The right to image derives from the regulations for the protection of private life and article XI.174 of the Code of Economic Law.
Under these regulations, a person's permission must be sought to make, display or reproduce their image.
Duration of the right to image
Only persons whose image can be recognised by other persons and who can be sufficiently individualised by, for example, the representation of their face, their clothes, etc., can invoke their right to image throughout their lives. After their death, the right to image remains valid for twenty years and the heirs of the deceased can invoke it.
Manner in which permission is given and persons who must give permission
The permission to make, display, communicate or reproduce a person's image may be given in writing or orally.
A tacit permission may also suffice if it can be unequivocally inferred from the circumstances that the person depicted has given his permission
- to take of his image (e.g. by posing for the photographer),
- to display his image (e.g. when the person depicted himself has provided the image for the exhibition) or
- to reproduce his image.
In the case of minors, the permission of the parents or legal guardian is required and, and as soon as the depicted person has reached the age to be able to judge for himself, the minor must give this permission together with his parents or legal guardian.
As regards public persons (ministers, singers, sportsmen, etc.), permission to take, display and reproduce their image is presumed, insofar as these images were made in the course of their public activity.
It is generally accepted in case law and legal doctrine that this permission of a reproduced person must be interpreted restrictively.
Right to image in education
The right to image of persons, as described above, also applies in education. By education is meant not only art schools, but also general education, with regard to the images of pupils and students.
Legal doctrine is indeed of the opinion that the exceptions to copyright for the purpose of education, as stipulated in article XI.191/1 of the Code of Economic Law, do not apply to the right to image.