The Legal Enigma of the Selfie

Illustration nom de domaineNamed “word of the year” in 2013 by Oxford dictionary, the selfie is a self-portrait taken by the user’s smartphone. This practice has become the pièce de résistance of some social networks, like Instagram or Snapchat, each equipped with their own unique attractions to selfie takers, like filters or the option to add commentary.
Whether it is considered as a hobby or a heightening of societal individualism, the usage of the selfie raises many legal issues. From a legal standpoint, the selfie is governed by the right of publicity, which, in turn, derives from the right to privacy. Since the selfie is a photograph, the foremost issue is that of publicity rights. Whilst the situation is straightforward when a person takes their own photograph, it inevitably differs when a selfie becomes a group photograph. This matter is often resolved by assuming, correctly, that those featuring in the picture have consented to be photographed.
But consent usually does not go any further, which frequently gives rise to other problems. In this era of social networks, the author of the selfie will feel the urge – if not a reflex – to post the photograph on social platforms without having obtained the express agreement of relevant individuals. However, consent to be photographed and consent to having one’s photograph posted online are different. It is thus recommended to obtain the express consent of the persons photographed in order to publish and share the picture. For the record, the consent of individuals appearing on the photograph, albeit not as the chief object (including people in the background), is not required.
The selfie may also raise the question of image rights in relation to property. When the photograph is taken indoors, the right to privacy is of significance and it may be necessary to obtain the consent of the occupier of the premises. More importantly, when the selfie is inclusive of a good covered by copyright or other IP rights, the right holders are entitled to request the withdrawal of the photograph.
Finally, during the last election, there was a surge of selfies taken in the booth. In France, there is no rule against self-photographs in the booth provided the secrecy of the vote is not infringed. The Interior Minister stated that “it should be noted that the “ballot is secret”(article L. 59 of the Electoral Code). In addition, the presiding officer may expel anyone in case of disturbance of public order.” The act of taking a picture of oneself in the booth is not in itself a disturbance to public order but can challenge the independence of the voter.
The selfie thus presents specific issues that should be handled with care, especially in respect of publication on social networks.


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