Commons:Photographs of identifiable people/Draft 2015-16

This page is a work in progress page, not an article or policy, and may be incomplete and/or unreliable. Please offer suggestions on the talk page.

Introduction

What's it all about? Separate out various threads. Acknowledge that editors have widely differing views.

Hosting photographs of identifiable people on Wikimedia Commons

General principles

General community rules (hopefully an agreed policy) for when we can host. These are informed by international laws and conventions but should be simpler, more definite, and clearer. They also include considerations of courtesy and our moral obligation to behave ethically with regard to photographs of people.

These are subject to any tighter laws that may apply in the country in which the photograph was taken. But in the absence of anything more restrictive these community rules should apply.

Link to country-specific laws relevant to hosting

Discuss US legal situation and WMF terms, as those govern everything.

Ethical issues

While some aspects of ethical photography and publication are controlled by law, there are moral issues too. Not all legally-obtained photographs of identifiable individuals are acceptable to Commons even if they otherwise fall within the project's scope.

The following types of image are 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 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.

Common decency and respect for human dignity are the crucial points here, not what is allowed by the law. We may decline to host certain images not because we have to but because we have chosen to act in an ethical manner.

The extent to which an image might be regarded as "unfairly obtained" or to be "intrusive" is a matter of degree and will depend on the nature of the shot, where and how it was taken, and the degree to which the subject is a public figure (for example, an elected politician).

In the same way that some newspapers may apply a "public interest" test to doubtful images, the degree to which an image meets our educational project scope may also be considered. Bear in mind that there is no requirement for Commons to host any image of an identifiable person, and that we are perfectly entitled to decline any image that we cannot ethically host. That is a matter not of so-called 'censorship' but of editorial judgement.

Consent of the subject

Discuss implied consent vs explicit consent in more detail

Existing text, to work on

A hospital ward is a publicly-owned space where people have an expectation of privacy, so from the relevant point of view here, it is a private space.

Just as the circumstances of a photograph govern whether consent is required, they also influence the nature and degree of consent should it be required. There are three aspects: taking, uploading and using a photograph. At the most basic level, a subject looking at the camera and smiling might normally be assumed to have given their consent to have their photograph taken. In some circumstances, however, verbal or even written agreement may be required.

Consent to have one's photograph taken does not permit the photographer to do what they like with the image. An image on Commons will have greater potential exposure than one in a photo album, on a personal Facebook, or part of a user's Flickr stream. A model, for example, may have consented to the image being taken for a personal portfolio, but not for publication on the Internet. The photographer and uploader must satisfy themselves that, when it is required, the consent given is appropriate for uploading to Commons.

Some subjects are unable to give appropriate consent due to young age or because of learning difficulties. In these cases, the consent of the parents or responsible guardians should be sought.

For a self-portrait, where the subject of the photograph is also the photographer and/or uploader, consent is assumed, provided they are capable of giving appropriate consent (as noted above).

Normally it is sufficient that the uploader asserts that appropriate consent was given. The {{Consent}} template may be used for this purpose, though it is not required. Please refer to the template documentation.

An example of consent that is too restrictive for Commons would be a typical patient photography consent form, which may only allow the image to be used in medical journals or for teaching within the hospital. An example of consent that is more permissive than is required for Commons would be a model release, in which the subject gives up their right of publicity.

Removal at the request of the subject, photographer or uploader

When do we require actual requests for removal (if at all)? We should document the rules, and not simply rely on entirely subjective 'courtesy deletions'.

Legal issues

General discussion - information

Personality rights

and similar, such as rights to publicity, droit d'image etc

Country-specific laws relevant to hosting

Include details here only where local laws on taking or distributing photos are more restrictive than our community rules

Re-use of the image outside the Wikimedia sites

Discuss. Make it clear this does not affect hosting. Link to more detailed page with country-specific laws relevant to-use.

The {{Personality rights}} template can be used to warn re-users of Commons’ content that local laws may impose additional requirements on re-use, over and above those that we enforce here. It has nothing to do with whether we should host the image. If a photograph does not comply with this policy it must be deleted, and it is never a valid argument that adding a {{Personality rights}} template will allow it to be kept.