You may feel disconcerted after realising that someone has taken a photo of you in public and has published it without your consent.
What you should do is:
- Keep the publication in which your photo appeared, if the photo was published in a physical medium like a magazine, leaflet or poster;
- Take a photograph of the publication in which your photo appeared, if the photo was published in a physical medium but you are unable to or are not allowed to keep the publication with you; or
- Capture a screenshot of the webpage on which your photo appeared, if the photo was published online.
Next, you should try your best to ascertain the identity of the person or company who took and published your photo.
Once you are able to do so, you can request that the other party remove the photo expeditiously. Should that party not comply with your request and/or should you seek compensation from him as well, you may then consider taking legal action.
View this post on Instagram
Your first line of action should be to screenshot the webpage on which your photo appeared as evidence, and to identify who took and uploaded your photo. ?? Once you do so, you can message the other party and request for them to remove the photo. If the other party fails to comply, report their account and the post with your photo. ? – In more serious cases, publishing a photo of someone without their permission can be considered as an act of harassment or defamation if certain conditions are met. ? For example, if the other party published your photo with “threatening, abusive or insulting words” that led to you feeling alarmed or distressed, it would count as harassment. If such harassment continues for an extended period, consider applying to the District Court for a protection order. ⚖ – With Anime Festival Asia (AFA) happening at Suntec this weekend, there’s bound to be tons of cosplayers around the area! Make sure to ask for permission before taking photos of them, no matter how good their cosplay looks, or how busy they may seem. ?? #SingaporeLegalAdvice
Breach of Data Privacy
It will generally not be a breach of the Personal Data Protection Act (PDPA) if:
- The person who took the photo had done so in their personal or domestic capacity, i.e. they were not taking the photo in the course of their employment with an organisation; and/or
- You were in a public area generally open to the public. This is because personal data that is publicly available is not protected by the PDPA.
The situation may be different if the other party had taken and/or published the photo without your consent in his capacity as an employee of an organisation, while you were attending a private event (even if the event had been held in a public space). In this case, you may be able to sue the other party’s employer, i.e. the organisation, provided that you have incurred any losses or damages directly arising from the employee’s actions.
Alternatively, you may submit a complaint to the Personal Data Protection Commission, which may then investigate whether there was any non-compliance with the PDPA on the part of the organisation.
You may be able to make a police report or sue the other party for harassment under the Protection from Harassment Act in the following circumstances:
- If the other party had intended to cause “harassment, alarm or distress” to you, and therefore published “threatening, abusive or insulting words” (along with the photo), which led you to feel harassed, alarmed or distressed. This is unless he can show that he had acted reasonably.
- If the other party had caused “harassment, alarm or distress” to you, through their “threatening, abusive or insulting words or behaviour” (such as by publishing the photo). This is unless he can show that he had acted reasonably.
- If the other party published “threatening, abusive or insulting words” (along with the photo), which led you to feel harassed, alarmed or distressed. This is unless he can show that he had acted reasonably or that he had no reason to believe that you would have heard, seen, or otherwise perceived the words in question.
- If the other party published “threatening, abusive or insulting words” (along with the photo), with the intention of causing you to believe that unlawful violence would be used against you or a third party, or whereby you are likely to believe that such violence would be used against you or a third party. This is unless he can show that he had acted reasonably or that he had, in the latter scenario, no reason to believe that you would have seen, heard, or otherwise perceived the words in question.
Also, you may apply to the District Court for a protection order to stop the harassment.
If the other party who took a photo of you published the photo together with written statements, you may be able to establish a claim in defamation against him due to the defamatory nature of those statements. This is provided:
- You can prove that the requisite elements of the tort have been fulfilled; and
- The other party is unable to rely on any defence recognised under the law.
For more details on these elements and defences, refer to our guide on defamation.
While image rights are not recognised under Singapore law, you may consider suing the other party for passing off if your photo was used without your consent by the other party for commercial purposes. To establish a claim for passing off, you need to fulfil 3 requirements:
- You must have goodwill associated with any goods or services that you supply to the public.
- The other party must have made a misrepresentation that caused or was likely to cause the public to believe that his goods or services were instead your goods or services.
- You suffered or are likely to suffer damage because of the misrepresentation.
The UK case of Fenty and Others v Arcadia and Others  EWCA Civ 3 provides some guidance as to how the Singapore courts may in future safeguard the commercial use of individuals’ images via the tort of passing off.
For instance, to fulfil the goodwill requirement, a claimant should have operated an extensive endorsement business such that he has acquired significant goodwill with regard to the types of goods or services that he has been endorsing.
Meanwhile, to satisfy the misrepresentation requirement, the claimant should have been misrepresented as having endorsed the defendant’s products or as being responsible for the products’ quality.
Evidently, this avenue of seeking redress, i.e., the tort of passing off, is more appropriate for celebrities or well-known people who are known by the public (or a significant section of it) for doing endorsements for businesses. If you are someone who has previously authorised numerous businesses to use your image for such purposes, you may be able to satisfy the goodwill requirement.
Also, provided you fulfil the other 2 aforementioned requirements as well, you may succeed in a claim of passing off.
Previously, if someone took a photo of you in public and published it, there was little that you could do other than rely on the bases of harassment, defamation or passing off should the facts allow so.
Now, with the enactment of the PDPA, you may have a stronger claim against the other party on the basis of a breach of data privacy, provided that party had acted in the capacity of an employee of an organisation.