What can I do if someone takes a photo of me in public and publishes it?

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 first do is to (a) keep the publication in which your photo appeared, if the photo was published in a physical medium like a magazine, leaflet or poster; (b) 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 (c) 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.

Breach of privacy

If the other party took and/or published the photo in a personal or domestic capacity, he is not legally obliged to obtain your consent beforehand (section 4(1)(a) read with s 13 of the Personal Data Protection Act 2012 [“PDPA”]). In such a situation, you will not have any cause of action against him, and should instead seek legal recourse via other avenues as elaborated below.

Similarly, if the other party took and/or published the photo without your consent, in the capacity of an employee who was acting in the course of his employment with an organisation, he is not obliged to obtain your consent beforehand (s 4(1)(b) read with s 13 of the PDPA), and therefore may not be held liable for a violation of s 13.  However, should you have incurred any losses or damages directly arising from his actions, you may sue his employer, i.e., the organisation instead for the taking and/or publication of the photo (s 32(1) read with ss 13 and 53(1) of the PDPA). Alternatively, you may submit a complaint to the Personal Data Ptotection Commission, which may then investigate whether there was any non-compliance with the PDPA by the organisation (s 50(1) PDPA).

Harassment

You may be able to sue the other party (section 11(1) of the Protection from Harassment Act [“PHA”]) 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 (s 3(1)(b) PHA), unless he can show that he had acted reasonably (s 3(3) PHA)
  • If the other party published “threatening, abusive or insulting words” (along with the photo), which led you to feel harassed, alarmed or distressed (s 4(1)(b) PHA), 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 (s 4(3) PHA)
  • 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(s 5(1) PHA), 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 (s 5(3) PHA)

Also, you may apply to the District Court for a protection order (s 12(1) PHA) or lodge a Magistrate’s Complaint at the Crime Registry to stop the harassment.

Defamation

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 (a) you can prove that the requisite elements of the tort have been fulfilled; and (b) 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.

Passing off

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 fulfill three requirements as stated in Novelty Pte Ltd v Amanresorts Ltd and Another [2009] 3 SLR 216 at [36]: First, you must have goodwill associated with any goods or services that you supply to the public. Secondly, 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. Thirdly, you suffered or are likely to suffer damage because of the misrepresentation.

The UK case of Fenty and Others v Arcadia and Others [2015] 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 fulfill 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, and provided you fulfill the other two aforementioned requirements as well, you may succeed in a claim of passing off.

Conclusion

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 narrow bases of harassment, defamation or passing off should the facts allow so. Now, with the enactment of the Personal Data Protection Act 2012, 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.

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