John Kerry, Democratic Party presidential candidate, recently used a photo of himself and a group of his fellow Vietnam combatants in a television campaign. Now he has been threatened with potential litigation by some of the group if he does not remove the photo. A Kerry spokesman claims these veterans are simply Republican Party supporters who themselves had used a blown-up version of the photo for publicity purposes, in that case without Kerry’s permission. This brings up the legal question of when one can use someone’s image without his or her consent.
In South Africa the use of a person’s image without consent can give rise to a defamation claim if it is used in a derogatory context, and where it has the effect of lowering that person’s reputation. Use of a person’s image may also result in a breach of privacy in circumstances where the nature of the information displayed is considered private. But unlike the US, South African law is underdeveloped in the area. The courts have partially covered it by ruling that publication of a photo without consent for the purposes of advertising can constitute an injuria. Of course one would need to take cognisance of the circumstances of each case, including the nature of the photograph and whether the person had a previous relationship with publicity. So celebrities may have a more difficult time proving their claims to privacy.
South African courts will distinguish between the use of images of celebrities and non-celebrities. The use of celebrities’ images encompasses the area of commercial endorsement, i.e. use in association with products or services for a commercial purpose. Here the celebrity not only has an interest in what product or service he is being associated with, but also a direct commercial interest. The use of non-celebrities’ images may not have direct commercial value but may have other value, for example the men in the Kerry photograph claim their images have political value as it implies they endorse his campaign.
There seems to be a gap in South African law where the use of someone’s image falls under a form of breach of personality rights, and where the claim would be neither in the law of defamation nor privacy. Some legal commentators say this gives rise to a new breach, being a breach of “identity”, which they define as the uniqueness of the individual. It covers the factors that distinguish individuals from others, such as looks, voice and even personality. These are infringed when used in a way that does not reflect one’s proper image.
The Code of Advertising Practice of the Advertising Standards Authority (ASA) goes some way to dealing with this issue, but serves as a self-regulatory mechanism. It states that adverts should not portray, or refer to, any living person unless their prior permission has been obtained. This does not apply in a number of circumstances, for example:
when someone is in the background shot of an advert and is recognisable, provided they are not defamed, humiliated or offended.
when, in the ASA’s opinion, the reference or portrayal is not inconsistent with the subject’s right to a reasonable degree of privacy, and does not constitute an unjustifiable commercial exploitation of the individual’s fame or reputation.
Regardless of what aspect of the law you apply, the basis remains the same. The claim is for the unauthorised use of a person’s image for commercial or other purposes without their consent. Whether the use of the Kerry images would constitute an infringement in South Africa would depend on the interpretation and application of the law, and possibly the creation of a new precedent to cover the gaps in our law. Accordingly, advertisers should be aware of the risk they take when using images of people without proper consent.
Greg Hamburger is an attorney with Rosin Wright Rosengarten, a firm specialising in entertainment and media law based in Johannesburg.