The new version of the draft Civil Code of the Republic of Uzbekistan includes a particular article aimed at protecting citizen’s right to their image.
Recently, some mass media and social network users interpreted this news as if this article aims to protect an image of civil servants. In order to avoid such misunderstandings, it is necessary to clarify once again the issue of obtaining the consent of the citizen to photograph him and use his image.
Obtaining the consent to photograph and exceptions
According to the Article “Protection of the right to the image of the citizen” included in the draft Civil Code, the consent of the citizen is required to photograph him and use his image. If that person is found to be a juvenile or insane, the permission of his legal representatives is required. The consent of his children, husband (wife) or parents is required in the event of death.
That is, generally, the consent of any citizen is required to use a photo or video image.
However, there are exceptions to this general rule, which do not require the consent of the citizen to be photographed and used:
1. Consent is not required when the image is used for the benefit of the state or society. Such use includes the following circumstances: to combat against offences, to ensure state security, to declare a search for the person in the image who has committed a crime or is missing, using pictures of public figures and prominent representatives of science, culture and other fields to disseminate information of great interest to society; as well as to photograph and to use such images of civil servants in the performance of their official duties.
That is, consent is not required when the image is used not in personal interests but in the interests of the state and society, including when a civil servant is photographed in the performance of his or her official duties and when these images are used. (The following norm is an example of such situation: according to the Regulation approved by the Cabinet of Ministers on 01.12.2018 No. 975, traffic participants have a right to record their interaction with the traffic police officer on their audio, photo and video device)
2) When the citizen is depicted in public events and public places (public catering, educational institutions, zoo, parks, streets and other public places), consent is not required in cases where the purpose of using such an image is only to demonstrate the general processes in those places.
That is, consent is not required to take a picture of a person in public places or at public events and use that image. The only condition is that the object of the image must not be directly that person;
3) When the purpose of photographing and (or) using a citizen’s image is to protect the rights of that citizen, when the image is published by the citizen himself in sources available to all, consent is not required.
The issue of responsibility
It is also essential to correctly interpret the question of what liability arises when a citizen is not complied with the requirement to obtain his or her consent when photographing a citizen and using the image. Since the violation occurs from a civil law relationship, in this case, the liability also relates to civil law (no administrative or criminal liability arises).
That is, a citizen who encounters the use of his image without his consent, has a right to demand from the other party to delete his image (from the memory of the camera, mobile phone and other equipment) and delete what is reflected in the image, as well as remove from the media, the Internet, outdoor advertising and handouts with advertising features.
If these demands are not fulfilled, the citizen will be able to apply to the court for enforcement of the requests, as well as for pecuniary damage and non-pecuniary damage. The citizen will have to prove that he has suffered pecuniary damage and non-pecuniary damage.
A requirement of obtaining a person’s consent to photograph him is also regulated in foreign countries. For example, Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27 2016 (entered into force on May 25, 2018) states that the processing (collecting, recording, using, distributing, etc.) of personal data is legal only if the subject of personal data agrees to the processing of his personal data for one or more specific purposes. According to this Regulation, the image of a person’s face belongs to his personal data.
Article 152.1 of the Civil Code of the Russian Federation states that the distribution and use of an image of a citizen may be performed only with the consent of that citizen.
According to Article 145 of the Civil Code of the Republic of Kazakhstan, no one may use the image of another person without his consent (if the person died, without the consent of his heirs). The publication, use and distribution of the image of a citizen may be made with the consent of that citizen, if the citizen has died, with the consent of his children and his husband (wife). Such consent is not required in cases provided by law or in cases where the person is photographed for a fee.
Nowadays protecting the image of the citizen is essential. Because there are many cases of dissemination of information on social networks using images of citizens, and this information causes to damage a person’s honor and dignity, reveal family and personal secrets. As a result, various conflicts are arising in society. In fact, Article 99 of the current Civil Code stipulates that a citizen’s right to an image is protected and may not be revoked or transferred otherwise, but the limits of the right to an image are not clearly defined. The reason for the inclusion of a separate article in the draft Civil Code aimed at ensuring the protection of the right to the image is to fill this legal gap and ensure the security of the rights of all citizens to the image.
Under the Ministry of Justice
Director of the Legal Policy Research Institute