With regard to the right to content, we may think mainly of copyright and the many summons with high compensation that many companies and bloggers have to deal with. But there’s more. Much more. Consider for example portrait rights and privacy. How should and should we deal with the publication of names and portraits? This is part two of the series based on the new book #contentrecht . So this time about portrait rights. We have been scared by the arrival of the AVG. Many people think they can stop every publication, as if they have a veto. The Dutch Data Protection Authority also often makes it seem as if permission is required for everything. That is incorrect. Reading tip : part 1 about copyright and content The AVG system The AVG is the General Data Protection Regulation. Known in English under the abbreviation GDPR. It is also known as the new privacy law. It is the successor to the Personal Data Protection Act. The great thing about the AVG is that it is the same for all EU countries. That makes it easy. The AVG does not prohibit the use or publication of personal data, such as names and portraits, but there is a system that you must follow to know whether you may process that personal data. If you follow the step-by-step plan, it will become clear whether what you want to do is allowed or not. Do you skip a step? Then the assessment suddenly becomes a lot more difficult! All information that is directly or indirectly traceable to a person, we call personal data. So that goes much further than just a name and address. The first name and first letter of the last name of a suspect are simply personal data. An avatar or profile photo on social media, more like a cartoon, a fantasy name, are all personal data. That sometimes more effort is needed to trace someone back, that information suddenly no longer makes personal data. Special personal data are laid down by law. This concerns medical data, political preference, sexual orientation, race and ethnicity, religious beliefs, membership of a trade union, etc. This data cannot be processed just like that and therefore cannot be published just like that, unless an exception can be made . The two most important exceptions are permission (from the person concerned) and journalism . The two most important exceptions are permission (from the person concerned) and journalism . Unfortunately, the Dutch Data Protection Authority is very strict when it comes to assessing whether journalism is involved. It is therefore stricter than using it for a publication. The next step is that you need a foundation. There are six of them, but for using in content you can actually only use two: Permission or the legitimate interest . Permission speaks for itself. You of course need permission from the person himself. But you don’t always get that or you can’t always get it to find the person difficult or to reach. It’s a shame if you can’t use that content! Then, fortunately, we still have the legitimate interest basis. One that you can use often, but for which you have to do something. In that case, you must weigh your own interest as a content creator or publishing party against the interests of the person concerned. You will always violate someone’s privacy when you publish their name or portrait. The question is whether that goes too far. When is your interest in publishing greater than the importance of privacy? When is your interest in publishing greater than the importance of privacy? Or maybe your interest is very large, but the infringement is even greater so that it is not possible. You will have to make this assessment with every publication of content or other processing of personal data in content. You may then only process the personal data for the purpose for which you collected it. Purpose limitation, that is called. You may not suddenly change goal or basis later. The more innocent the content, the more can be done, in general. The more privacy sensitive, the more important the publication must be. You will therefore have to look at it case by case. Reading tip : AVG Act in a nutshell (GDPR step-by-step plan) Photography and publishing are still allowed The rules have not been changed that much by the AVG. We have only become more aware of those rules and more administration has been added. But when it comes to using personal data in content, it is no different than before. Yet many people think that suddenly we have to be much more careful when filming and photographing people. That nothing is allowed without permission. Fortunately that is not true. So you read above that the AVG usually does not throw a spanner in the works. The portrait right, which is included in the Copyright Act, is also often not in the way. Once it is clear that it is allowed by the AVG, you only have to check whether it is also allowed to have the portrait right. The portrait right: commissioned or not? We have two tastes in portrait law: portraits that were commissioned by (or for the benefit of) the person portrayed and portraits that were not commissioned. If a portrait has been made on commission, then you may not publish it without the permission of the person portrayed. Incidentally, the person portrayed may not do anything with that portrait. Especially a matter of making good agreements. Always make sure that, in addition to agreements with the subject, you also have to make agreements with the photographer or illustrator, because of copyright. Portrait right, freedom of expression and honor and good name Portraits that were not commissioned are different. You can of course always ask for permission to use it. Then you are safe. But that is not always preferred, or it is simply not possible. If you do want to work with this permission, make sure that it is written down on paper and be as specific as possible, so that no misunderstandings can arise about it later. The protection of your privacy is in the Netherlands Conflicting fundamental rights For portraits that have not been commissioned, the ‘reasonable interest’ criterion applies. Yes, that is also a consideration of interests, but a bit different than under the AVG. The struggle here is usually between freedom of expression and honor and good name. These are both fundamental rights, but unfortunately they do not always go well together. That is why a decision has to be made. The photo itself and what you can see on it then plays a role. This concerns, for example, the suggestion that the photo itself can already generate. Also important is the context in which you use the photo: the caption, the article, the other fragments in a video, the voice over and what else. For example, think back to 2016 when Schiphol was extra protected. Long lines of cars. Some were checked. De Volkskrant sent a photographer to it. He was only given 30 to 60 minutes to take the right photo. He took several photos of course. A number of photos ended up on the two pages with the article, but one photo was very large on the front page, with the text “Is Schiphol still safe?” The photo showed a bearded boy in his baby blue car. Only army and military police around him. This suggests that Schiphol might not be safe anymore because of people like him or perhaps because of him. News is very important. According to de Volkskrant, this was the only (suitable) photo for the front page. In any case, it wasn’t the only photo, because there were still some photos with the article. Admittedly, they were perhaps a little less ‘exciting’. But this photo, especially in combination with the text, does not justify this publication. The news here is no more important than this boy’s right not to be associated with terrorism. Shamad (scripture) and Slander Going one step further defamation and slander. You can be prosecuted for this. This risk is therefore greater than just a financial risk. Shamad (scripture) is the situation in which something that is perhaps true is spread further, publicized, while that spread is harmful and thus affects the honor and good name of the person. Consider, for example, the pee video of Patricia Paay. Consider, for example, the pee video of Patricia Paay. There was nothing about photo shopping. It was truth. However, that truth cannot be spread if it can cause serious damage. Smear is similar to defamation, but is about information that you know or should know that it is not true or is probably not true. It is therefore not the case that you can always share all the facts in detail. Gossiping on the terrace is no problem, but creating and distributing content about it is therefore. No absolute rights The most important thing to know is that there are no absolute rights. Privacy is also not an absolute right. It does not give anyone a veto right to forbid another person from doing anything with the personal data. Similarly, the right to freedom of expression is not an absolute right. The “I find criterion” where you could say anything, if you only say “I find” for it, does not exist. Opinions can also go too far, if they are not sufficiently substantiated, damage the honor and good name of a person or even intervene too far in someone’s privacy. Opinions can also go too far. I would like to say that the saying ‘What you do not want to happen to you, do not do that to anyone else’ applies here. But the problem is that we often approach different situations differently. Depending on the position that we currently have, for example. In addition, we all have different norms, values ​​and limits. The law tries to objectify as well as possible. As a result, people will always disagree with a rule or its application. One because the rule would go too far and the other because it is not nearly strict enough. Moreover, the tricky thing is that the rules are not black and white and therefore I cannot offer more than an explanation of the balancing of interests that you will have to make when you want to create content that includes other people. This is part two of my series of 3 articles on #contentrecht. Next week I’m going to talk about … Royalty-free content? Work with ghostwriters from CopyRobin. Place a test assignment Let’s block ads! (Why?)

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