Good dayI would like enquire whether the...

Asked by mverster on 10-01-2019 15:22:58
Question posted in the General Law category relating to Gauteng
Question value: R 250.00

Good day

I would like enquire whether there is any legal process I can follow to remove photographs which I appear in on a photography website. I was a guest at a wedding and was never aware of the fact that these photos would be uploaded on the photographers website and made public to anybody, until only later I came across these photos.

I first contacted the photographer via email to request that only the photos in which I appear be removed, but he advised that they will only be able to do this with the consent of the bride and groom as they selected these photographs to be uploaded on the website. I then contacted the bride and groom via email to request that these photos be removed but they refused.Is there any legal process to have these photos removed from this website?

Kind regards.

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Answer to the Question

Posted by Att. Patrick on 10-01-2019 21:08:17

Hi there and thank you for your question,

Your question basically revolves around the "right to privacy" which is one of the bills of right which is guaranteed in our Constitution.

Section 14 of the Constitution records that - Everyone has the right to privacy, which includes the right not to have— (a) their person or home searched; (b) their property searched; (c) their possessions seized; or (d) the privacy of their communications infringed. 

Our courts have read into this that a person has a legitimate right of privacy only in places where that person could reasonably expect their actions to be private. Imagine, your bedroom, or your bathroom. You do what you want in there because you EXPECT that your actions are private in there.

You don't do what you want in your kitchen, or garden, or driveway, because you most probably are aware that somebody could see you...

This means that you only really have a right to privacy (think, people taking pictures of you) in your bedroom and bathroom. You don't have a right to privacy in a public environment.

In your instance, you attended a friend's wedding in a public environment, or at the very least a private restaurant. There is, in my opinion, no legitimate right to privacy that you could expect there. Especially if you knew that there was a photographer walking around taking pictures of people. 

This is no different to the paparazzi taking pictures of movie stars doing weird things like- eating at restaurants, sitting in their garden, walking around, at parties, etc.  The reason that the paparazzi can take these pictures, and publish them in newspapers, is because the movie starts DON'T have that right to privacy which would mean that the paparazzi couldn't take the pictures.

Same thing with you.

My conclusion therefore is that you don't have a legitimate right to privacy which would bar the photographer from taking your pictures, and displaying them on their website.

IF HOWEVER the photographer uses your picture as an advertisement for his services, that would not be okay because the photographer is moving away from simply displaying the photographs to USING the photographs for commercial purposes. If that happens, the photographer would first need to obtain your permission to do so.

Think of another similar example. You go to a party, and somebody takes a picture (you're in a group of people) and that person loads the picture on Facebook / Instagram. Do you have the right to demand that this person removes the picture? No.

Facebook / Instagram would only remove the picture under certain limited situations. e.g. the picture was rude; sexual in nature; etc, etc.

So... my answer is really no. There is not a lot that you can do.

You could threaten to sue the photographer in court to get a court order to force him to remove it. But then you are taking a risk that you will be able to convince a judge that the pictures should be removed ... and the judge might very well have exactly the same questions as me.

Rather, I think that you should simply ignore it. There are literally TRILLIONS of pictures on the internet. How would somebody find it? As long as the picture does not contain any 'meta tag' with your name in it, the picture would never be linked to you by a search engine.

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

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Information provided by client

Good morning

Thank you very much for your detailed response in understanding the privacy laws in South Africa which I was not previously aware of at all.

Lastly I just want to confirm other than suing the photographer, there is no legal letter or any type of legal process to request the bride and groom directly to remove these photos?

Kind regards.

Answer to the Question

Posted by Att. Patrick on 11-01-2019 17:18:23

I think that the same advice above would apply to the bride and groom. You could send them a letter demanding that they remove the images, or instruct the photographer to remove the images, but if they ignore the letter - you are then going to end up having to sue the bride and groom. 

If you owned the copyright to the pictures, then my advice would be completely different. But you don't own the copyright - the bride and groom do. They paid the photographer to take the pictures, and so the pictures legally belong to the bride and groom.

If you had paid the photographer, then the pictures would belong to you and you could THEN demand that they are removed. Same thing if you took the pictures yourself. They would belong to you and you could THEN demand that they are removed.

Sorry that my advice is not really helpful ... but my suggestion is that you simply ignore the pictures.

Answer Accepted

This answer was accepted on 12-01-2019 22:50:57

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