Commons:Photographs of identifiable people
This page is considered an official guideline on Wikimedia Commons.
It illustrates standards or behaviors which most editors agree with in principle and generally follow. Feel free to update the page as needed, but please use the discussion page to propose major changes.
This article sets out some general guidelines to bear in mind when taking pictures of identifiable people that are intended for uploading onto Commons. The guidelines apply to photographs of others and do not apply to obvious self-portraits.
The general consensus on Commons (subject to any local law to the contrary) is that the subject's consent is not usually needed for straightforward photographs taken in a public place, but is often needed for photographs taken in a private place.
Photographs taken in a public place
In the United States (where the Commons servers are located), assent is not as a rule required to photograph people in public places. Hence, unless there are specific local laws to the contrary, overriding legal concerns (e.g., defamation) or moral concerns (e.g., picture unfairly obtained), the Commons community does not normally require that the subject of a photograph taken in a public place has consented to the image being taken or uploaded. This is so whether the image is of a famous personality or of an unknown individual.
Photographs taken in a private place
Because of the expectation of privacy, the consent of the subject should normally be sought before uploading any photograph featuring an identifiable individual that has been taken in a private place, whether or not the subject is named. Even in countries that have no law of privacy, there is a moral obligation on us not to upload photographs which infringe the subject's reasonable expectation of privacy.
What are 'public' and 'private' places?
For our purposes, a private place can be considered a place where the subject has a reasonable expectation of privacy; and a public place is a place where the subject has no such expectation. Note that there may be private places on public land (e.g., a tent on the beach) as well as public places on private land (e.g., a large private party or concert where many people are openly taking photographs). This general principle is a good starting point when gauging whether the Commons community is likely to require that the consent of the subject should be obtained before uploading.
As always, of course, if there are any local laws which control the taking of photographs, or the use that may be made of them without the subject's consent, those will take precedence.
Legal issues
There are a variety of non-copyright laws which may impact on the photographer, the uploader and/or the Wikimedia Foundation, including defamation, personality rights and rights to privacy. These vary from country to country, but the general rule is that an image is definitely unacceptable to Commons if it is illegal, or arguably illegal, in any one or more of: (a) the country in which the photograph was taken; (b) the country from which the image was uploaded; (c) the USA (where Commons images are stored).
You should bear in mind that defamation may arise not only from the content of the image itself but also from its description and title when uploaded. An image of an identified unknown individual may be unexceptional on its own, but with the title "A drug-dealer" there may be potential defamation issues in at least some countries.
Moral issues
Not all legally-obtained photographs of individuals are acceptable to Commons even if they otherwise fall within the project's scope. The following types of image are normally considered by the community to be unacceptable:
- Those that unfairly demean or ridicule the subject
- Those that are unfairly obtained
- Those that unreasonably intrude into the subject's private or family life
These are categories which are matters of common decency rather than law. They find a reflection in the wording of the Universal Declaration of Human Rights, Article 12: (No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation).
The extent to which a particular photograph is "unfair" or "intrusive" will depend on the nature of the shot, whether it was taken in a public or private place, the title/description, and on the type of subject (e.g., a celebrity, a non-famous person, etc).
This is all a matter of degree. A snatched shot of a celebrity caught in an embarrassing position in a public place may well be acceptable to the community; a similar shot of an anonymous member of the public may or may not be acceptable, depending on what is shown and how it is presented.
Re-use of the image
Commons images are released under wide licences, but without any guarantee that they are free of non-copyright legal restrictions on re-use. Someone re-using in a derogatory manner an unexceptional Commons image of an identifiable subject might run the risk of the subject suing for defamation. But since neither the photographer, the uploader nor the Foundation have encouraged such defamatory use, the image itself is still perfectly acceptable to Commons. The fact that a photograph is capable of being misused does not mean, in itself, that it is objectionable here.
Examples
In each case, of an identifiable individual with no consent given, and assuming no defamation or other legal issues:
Probably OK to the Commons community
- An anonymous street performer
- An anonymous person, in a public place
- Partygoers at a large private party where photography is expected
- A basketball player competing in a match which is open to the public
Probably not OK to the Commons community
- A man and woman talking, entitled "A prostitute speaks to her pimp" (possible defamation)
- An identifiable child, entitled "An obese girl" (potentially derogatory or demeaning)
- Partygoers at a private party where photography is not permitted or is not expected (unreasonable intrusion without consent)
- Nudes, underwear or swimsuit shots, unless obviously taken in a public place (unreasonable intrusion without consent)
- Long-lens images, taken from afar, of an individual in a private place (unreasonable intrusion)
Removal at the request of the subject, photographer or uploader
Sometimes the subject, photographer or uploader of an image requests that it be removed from Commons, for example because it may cause embarrassment. Generally, images are not removed simply because the subject does not like them, but administrators are normally sympathetic to removal requests where good reasons can be given.
Avoiding problems
It may sometimes be possible to avoid the legal and moral issues mentioned here, for example by:
- Anonymizing the image (e.g., by pixellating the subject's face or by cropping it out)
- Careful choice of title and description
- Obtaining and recording the consent of the subject
- Re-taking the picture (e.g., from another angle) so that the subject cannot be identified.