Commons talk:Photographs of identifiable people/Update 2013/Legal issues

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COMMONS SCOPE REVIEW
  • Click on the 'Project page' tab, above to see the current policy/guideline wording that is under discussion on this page.
  • To make a specific proposal, please start a new subsection and use the code below to put it in its own box. You can sign underneath the resultant box, but for technical reasons you can't use "~~~~" within it. Please number your proposal for ease of reference.
{{divbox|amber|Proposal number and title|Introduction
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Scope Review 2013 links:

Discuss stage 2 of this review

Translation

Background

Links to current rules

Discussion: Introductory Scope wording

Discussion: Files

Discussion: Pages, galleries and categories

Discussion: Areas of particular concern

Discussion: Identifiable people

Other proposals

Some suggestions for discussion on this page

This guideline asserts a number of things that are legally false, IMO. It makes the blanket statement, "A concert is a public place!" - but provides no citations to support the definition of what a public place is, or the whole concept of rights varying based on that definition. I propose that this be removed. If something legally verifiable can be found to replace it, fine. — Preceding unsigned comment added by Elvey (talk • contribs) 20:40, 10 August 2013‎ (UTC)[reply]

Proposal 1

[edit]
Proposal 1: Keep the existing wording untouched
  • Please discuss the above proposal here

The existing text is a bit confusing. I think a slightly-larger-than-nutshell summary might help. As I understand it (including the Consent section from Commons:Photographs of identifiable people):

For non-copyright purposes of privacy law and personality rights, the standard of inclusion for Commons is that a photograph of an identifiable person must be legal for non-commercial use in (a) the country in which the photograph was taken; (b) the country from which the image was uploaded; (c) the United States (where Commons images are stored). To determine this:

  • If a photograph is taken in a public place, in most cases no consent is required, but consult Commons:Country specific consent requirements to be sure.
  • If the photograph is taken in a private place, consent is required by Commons, even if not required by law.

Where required, consent must be given for both taking the photo and publishing it. Evidence of consent may be:

  • Inferred - Looking at the photographer and smiling, or being in a posed photo, is usually inferred consent for taking the photo.
  • Explicit - The uploader can assert that consent was given with {{Consent}} (recommended if applicable), or the identifiable person can assert consent by editing the page or emailing the Wikimedia Foundation - see Commons:OTRS

Additional rules:

  • All media with identifiable people should include the template {{Personality rights}} to warn commercial users that it might require additional consent before that type of re-use.
  • No defamatory photos may be uploaded to Commons.

Things I'm not sure about:

  • Shouldn't there be an OTRS form-letter email template we can point people at to affirm their consent?
  • Can photo subjects affirm consent by editing the photo description page directly?
  • Under what circumstances can implied permission for publication be assumed?
  • Do these rules get enforced pro-actively, only if there is a dispute among editors, or only if the subject contacts Wikimedia?

-- Beland (talk) 20:10, 27 June 2013 (UTC)[reply]

This topic appears to be of lesser interest/priority to the community than some of the others in this review, and I propose that we should close it down now. That will allow us in part 2 of the review to focus our full attention on the most important and/or contentious issues. Please comment at Commons talk:Project scope/Update 2013/Stage 2. --MichaelMaggs (talk) 18:13, 23 July 2013 (UTC)[reply]

Proposal 2

[edit]
Proposal 2: Clarify the public/private nature of posed studio shots
Add the following text:
Does the photographer's presence make a difference? What about a photographer's studio?
A photographer's studio is a private place where the subject can reasonably expect privacy since there should be no photographers present other than the one the subject knows about. The presence of the photographer who takes the image is dealt with as a matter of consent and does not turn what would otherwise be a private place into a public place. It follows that a posed studio shot always requires the subject's consent even though sometimes that consent may be assumed.

(This was part of the 2009 discussions)

--MichaelMaggs (talk) 06:51, 21 June 2013 (UTC)[reply]

Deals with quite a common (but spurious) argument on DRs that 'this can't be a private place as the subject knows that a photographer is present'. The knowledge of the photographer's presence, though, goes to consent not the public/private distinction. --MichaelMaggs (talk) 13:01, 23 June 2013 (UTC)[reply]

Posing for a shot implies consent for taking the photo, but what about consent for publishing the photo? Is that even required? Do we need a another chart that explains that country-by-country? -- Beland (talk) 20:12, 27 June 2013 (UTC)[reply]

This topic appears to be of lesser interest/priority to the community than some of the others in this review, and I propose that we should close it down now. That will allow us in part 2 of the review to focus our full attention on the most important and/or contentious issues. Please comment at Commons talk:Project scope/Update 2013/Stage 2. --MichaelMaggs (talk) 18:13, 23 July 2013 (UTC)[reply]

Proposal 3

[edit]
Proposal 3: Clarify the handling of photos where the type of location is uncertain
Add the following text:
What if it is not clear where the photograph was taken?
Some photographs have indistinct or nondescript backgrounds that give no clue as to the type of location in which it was taken. In such cases, additional information provided by the photographer or the uploader can be taken into account provided the information appears trustworthy. Where no information at all as to the location is available (eg a portrait by an obscure photographer found on the internet, with foliage in the background), it should be assumed that the location is private. Even then, the image may still be allowed if it is permissible to assume that consent has been given.

(This was part of the 2009 discussions)

--MichaelMaggs (talk) 06:51, 21 June 2013 (UTC)[reply]

  • Please discuss the above proposal here
  • This is too problematic. I think this FAQ approach doesn't work. It tries to provide complete answers to questions that simply don't have enough context in which to give a complete answer. Better to have the guideline supply information and consensus opinion that can be mixed as appropriate for each image. IF there are some very common scenarios where we can prepare an answer, then perhaps having a FAQ page would help. But this would need to draw on experience and handle only the common obvious cases. Colin (talk) 09:34, 22 June 2013 (UTC)[reply]
We may disagree on the best format. I prefer the question and answer approach as one can easily direct readers quickly to the answer to common questions without the need for them to parse long paragraphs of complex text. That's a particular problem where - as often occurs in policy documents - a single word or two may be of great importance. But perhaps we could agree that a FAQ could work. --MichaelMaggs (talk) 13:06, 23 June 2013 (UTC)[reply]
Yes, I support the idea of a FAQ, though it would probably be best not treated as official guideline/policy to avoid endless arguments over each question. An example where the above answer fails is a picture of a toenail. We've no idea if this was taken in someone's bathroom (very private place) and may have no idea whos toenail it is or what kind of consent was given. But also we probably do not care. Of course there's a spectrum between this and someone's naughty bits so my point is one has to consider lots of aspects and make a judgement on the particular case. Including, for example, which country the pic was taken in. Ultimately, if people don't have the patience to read and consider the whole guideline, they shouldn't really be commenting at DR. Colin (talk) 14:41, 23 June 2013 (UTC)[reply]

In general, my question is whether these inclusion rules should be read narrowly (throw out any photo that can't be demonstrated to conform) or broadly (assume consent in most cases unless there's a reason not to)? -- Beland (talk) 20:13, 27 June 2013 (UTC)[reply]

This topic appears to be of lesser interest/priority to the community than some of the others in this review, and I propose that we should close it down now. That will allow us in part 2 of the review to focus our full attention on the most important and/or contentious issues. Please comment at Commons talk:Project scope/Update 2013/Stage 2. --MichaelMaggs (talk) 18:13, 23 July 2013 (UTC)[reply]

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