I was recently contacted by a client who had the following problem:
Earlier this year she contacted a photographer and asked the photographer to take some photographs of her, her husband and their two small children. They agreed by means of Whatsapp on a price and a place and time and the photoshoot duly took place. On leaving the photoshoot she mentioned that mentioned that she did not want photographs of her children to be put on social media and the photographer looked surprised by this request but made no reply.
The photographs were duly sent to our client and she paid the fee to the photographer and thought no more of the matter.
However, some weeks later she happened to look at the social media page of the photographer and found out that the photographer had – contrary to her express wishes – posted the photographs of her and her family on the photographer’s social media page. She was incensed and contacted the photographer who told her: “I took the photographs and so I own the copyright and I can do what I want with the photographs.”
As a result of this she contacted us in order to find out if there were any remedies in law to force the photographer to remove the photographs from the social media page?
Somewhat to her surprise there were actually four different angles from which our client could approach the problem and they were:
- Copyright
- Data Protection
- Take-down notice
- Social Media complaint
Each of these will be dealt with below.
Copyright
In general, the person who took the photograph (the photographer) is considered to be the “author” of the photograph in terms of s1 of the Copyright Act no. 98 of 1978 and as such is also the first “owner” of the photograph. Even though ownership of the photographs can be transferred (for example by means of a written contract) the photographer will remain the “author” of the photograph. However, there is an exception to this rule which can be found in clause 21(1)(c) which reads:
“Where a person commissions the taking of a photograph… and pays or agrees to pay for it in money or money’s worth, and the work is made in pursuance of that commission, such person shall …. be the owner of any copyright subsisting therein by virtue of section 3 or 4.”
From this section you can see that the owner of the copyright in this case is in actual fact not the photographer, but rather our client.
However the issue of copyright does not end there. Section 27 of the Copyright Act makes it a criminal offence to “by way of trade exhibits to the public”, or “distributes for the purposes of trade” or “distributes for any other purpose to such an extent that the owner of the copyright is prejudicially affected” the photographs without the authority of the owner of the copyright. Bearing in mind that the photographer is posting the photograph on their social media page which is – presumably – used to attract new customers there is a good argument that not only a civil claim (infringement of copyright) has occurred, but also a criminal offence has occurred which can be reported to the police station.
Data Protection
Approaching the problem from an entirely different angle, most South Africans know that there is an Act called the Protection of Personal Information Act no.4 of 2013 (POPIA) which aims to protect the personal information of data subjects. While photographs of the family are obviously personal information as the photographs can be associated with a particular person, a more interesting question is whether the photographs can be considered to be “special” personal information and also whether they could be considered to be “special personal information about children”. Section 26 of POPIA lists the categories of “special personal information” as including “biometric information” and “biometrics” in turn is defined as “a technique of personal identification that is based on physical, physiological or behavioural characterisation including blood typing, fingerprinting, DNA analysis, retinal scanning and voice recognition”. Bearing in mind that most of our mobile phones now have facial recognition and that the act of recognising a face is used as a security measure to prevent unauthorised access to our mobile phones, there is a good argument that a reasonable quality photograph could be considered to be “biometric information”.
The complications do not end there as the photographs of the children and so subject to section 34 which provides that “a responsible party may, subject to section 35, not process personal information concerning a child”. Section 35 thereafter sets out various situations where personal information of a child may be processed – such as where the parent or “competent person” – consented to such processing.
Bearing the above in mind and bearing in mind that the photographer was doing this for the purpose of their business (rather than for personal or household use) there is an excellent chance that a complaint to the Information Regulator over the publication of the photographs of the children would be upheld, even if the photographer was the owner of the copyright.
The final point relating to data protection is that a breach of POPIA can also give rise to a civil claim by our client against the photographer.
Take-Down Notice
In addition to the above, there is a very effective mechanism to remove content from a local website which is called a “take-down notice” and this right was created by section 77 of the Electronic Transaction and Communications Act no. 25 of 2002. This mechanism is facilitated by the Internet Service Providers Association of South Africa (ISPA) and action is normally taken within days, making it the fastest mechanism to obtain relief in South Africa. All that needs to occur is for the complainant to set out what right has been infringed (in the above case the complainant would probably allege the infringement of both copyright as well as data protection rights) and this take-down notice is then communicated not only the photographer but also to the internet service provider that hosts the content.
However, take-down notices have one large problem and it is that they only work against South African Internet Service Providers. If the social media page is hosted overseas then ISPA will refuse to deal with the matter as they have no jurisdiction, and this leads us neatly into the final forum to consider.
Complaint mechanism of the social media provider
Almost all social media platforms have a set of terms and conditions where they set out how a complainant can bring a dispute relating to content on their platform, even if the complainant, the alleged infringer and the social media company are all located in different countries. While each social media platform will deal with complaints based on their own terms and conditions, this can the easiest (and most cost effective) manner in which to deal with the dispute.
Conclusion
From the above it is clear that our client had many more avenues for redress than she expected and certainly was well advised to contact us first, particularly as she had accepted the photographer’s assertion that she owned the copyright, when this allegation was not accurate. Unsurprisingly there are further complications when it comes to the drafting of:
- a civil claim for copyright infringement,
- a criminal complaint for copyright infringement,
- a complaint to the Information Regulator,
- a civil claim for damages based on a breach of POPIA,
- a Take-Down Notice, or
- a complaint to the social media company.
and it is probably wise to contact an attorney to assist with this. Should you have any questions please contact us at paul@ea.law.za .