Court of Appeal of The Hague Allows Portrait Right Claim of Turkish Woman
Turkish Party
The Turkish woman had been photographed in discotheque
'Now&WoW' at a Turkish dance party. The photo showed the woman
recognizably while she was dancing in 'modern clothing with a
low-cut round neck'. De Volkskrant, the newspaper that commissioned
the photographer concerned, had planned to publish the photo in an
article about Turkish parties, but in the end the photo was
published in an article with the headline 'Ban on Tight Jumpers'.
This article was about young emancipated Turkish women who clash
with traditional Muslim men. The photo was also published on the
front page of the magazine 'Migranten'. The woman brought
legal action against the photographer because she had not given him
permission to take the photo and claimed to have suffered damage as
a result of its publication, amongst other things because she had
become socially isolated. According to the Turkish woman, she had
lost social contacts because people around her thought that her
behavior as shown in the photo was offensive. The woman also argued
that she had suffered material damage because she had to break off
her education.
Reasonable Interest
The Court of Appeal found for the woman to the extent that the
photo should not have been published without her permission. In
this respect the Court of Appeal considered that no permission is
required for taking a photo of a person who is in a public place,
and that this person can oppose the publication of such a photo
only if he has a 'reasonable interest' to do so. The 'reasonable
interest' is the most important criterion when answering the
question of whether a photo of a person taken without permission
may be published. The Dutch Copyright Act, which holds the relevant
legislation in this respect, calls such photos - somewhat
old-fashionedly - 'portraits', but in fact this concerns all
pictures in which a person can be recognized. According to the
Court of Appeal, the Turkish woman has such a reasonable interest.
It is true that the discotheque where the photo was taken was a
public place, but it 'did offer a certain privacy because on this
particular night it was mainly attended by a specific group of
people who were part of the Turkish community'. By publishing the
photo in the article about emancipated Muslim women it was
suggested that the Turkish woman belonged to this group of women.
According to the Court of Appeal, because the woman had not
remained anonymous - unlike the women who were interviewed in the
article - she had a reasonable interest to oppose publication of
the photo.
Freedom of Information
Subsequently, the interest of the woman must be weighed against
the interest of the photographer to be able to offer photos for
publication without asking the permission of each and every person
portrayed. In this case the interest of the Turkish woman
outweighed the interest of the freedom of information. The Court of
Appeal has ruled in that connection that the challenged photo was
not necessary to provide the information intended by the
photographer. After all, the photo was not published in the article
about Turkish parties, but in the article about emancipated Turkish
women instead. It has not become evident that precisely the photo
of the Turkish woman was important for the publication of that
article, the Court of Appeal ruled. Therefore, the photo should not
have been published.
In a legal sense, the photographer got the short end of the
stick. However, the Court of Appeal ruled that the woman has not
substantiated the alleged damage she suffered, and ordered the
photographer to pay 'only' 300 Euro in damages.
The outcome in this case is at odds with that in the case of the
'female runner'. This concerned a judgment of the Court of Appeal
of Amsterdam, where it was ruled that a woman who had been
photographed while running could not oppose the publication of this
photo. Presumably, the decisive factors for the decision of the
Court of Appeal of The Hague to rule differently were that -
according to the Court of Appeal - the surroundings of the Turkish
woman at the moment the picture was taken entailed 'a certain
privacy', and the fact that the photo was published in an entirely
different context.
See also
this article (in Dutch) about the
judgment of the Court of Appeal in the Media Report. The 'female
runner' judgment can be found
here (in Dutch).