An analysis of portraits and portrait rights
Article 100 of the "General Principles of Civil Law", "Citizens enjoy the right of portrait, and citizens' portraits may not be used for profit without their consent." However, our country's laws have the concept of portrait rights, but the connotation and extension of portrait rights have not been accurately defined in legal form, and there is no authoritative explanation or regulation of its legal meaning. What is a portrait? According to the opinions of Cihai or experts, such as Professor Yang Lixin of Renmin University of China (doctoral supervisor, one of the drafters of the personal infringement part of my country's Civil Code), a portrait means "similarity, likeness", and "likeness" means comparison with the person. The image of success is also. In layman's terms, it refers to "an image similar to a character made by comparing the character" [1]; it refers to the visual representation of the appearance of citizens on a material carrier through art forms such as painting, photography, sculpture, video, film, and television. image.
Portrait right is a citizen’s specific personality right. What are image rights? The right of portrait is the personality right of citizens whose content is based on the interests reflected in their own portraits. Compared with other personality rights, the object of the portrait right itself has certain property interest factors, that is, it can produce economic benefits due to use. In terms of the personality interests of the portrait, there are spiritual interests and property interests, especially property interests and even To be obvious. Generally speaking, a person who is beautiful has the value of beauty, and an ugly person has the value of being ugly. But for ordinary people who are neither ugly nor handsome, few people ask them to do advertisements. This involves the aesthetics of portraits. Value question.
Rights, Latin for "jus", refers to both rights and law, and includes the meaning of fairness and justice[2]. Rights, also known as legal rights, are the permission and guarantee that the state, through legal provisions, provides for the subject of a legal relationship to do or not to do a certain act, and to require others to do or not to do a certain act [3]. Divided into political rights, economic rights, social rights, etc., civil rights are divided into property rights (divided into real rights and intellectual property rights) and personal rights based on whether they have property content. Personal rights refer to those that are inseparable and non-transferable and have no direct property content. civil rights[4]. Depending on whether the object is a personal interest or an identity relationship, personal rights are divided into identity rights (enjoyed based on a specific identity, such as spousal rights, parental rights, guardianship rights, etc.) and personality rights. Personality rights refer to the rights that civil subjects must have to maintain their independent personality, with personality interests as the object. Personality interests refer to the rights that civil subjects enjoy regarding their personal freedom and personal dignity, life, health, name, reputation, privacy, portrait, etc. The total benefits [5]. Portrait rights are one type of personality rights.
Portrait right is the personality identifier of a natural person, which reflects the appearance attributes of the natural person. Its basic content includes three items: First, the exclusive right to make a portrait, which means that you can make a portrait in any form at any time, and others are not allowed to. Interference also manifests as the right to prohibit others from illegally making one's own portrait; the second is the exclusive right to use, the right to prohibit others from illegally using one's own portrait, which also includes the right to transfer the right to use the portrait; the third is the protection of interests Rights, no one except the right holder has the obligation not to infringe.
Regarding the concept of portrait rights, here are a few points to remind everyone: 1. Legal persons do not have portrait rights, because portraits reflect the appearance attributes of natural persons, although in language, such as "□□□ the glorious image of the agency "There is an image description of the legal person; 2. The portrait in the portrait right lies in the "image", which is considered to only refer to the image of the face, facial features and "face". This is not accurate. Portraits cannot just refer to "facial features" and "face", but refer to the reproduction of a natural person's appearance on a material carrier. Of course, it mainly refers to a person's facial image. However, it cannot only be understood as "face" or "face". "Five senses". When the image carried by a photograph is sufficient to identify the person whose image is reproduced, the portrait should be deemed to be that of that person.
Of course, if you can’t tell whose portrait it is, you certainly can’t determine whose portrait has been infringed. For the first body photography art tour exhibition held in Hainan Province, a photo of a female model was used on the tickets printed. This photo is of the model. A photo titled "Beauty" was used on the ticket to cut off the part above the lips of the person in the photo, which triggered a lawsuit. The focus of the dispute was whether the unauthorized use of such a "faceless" photo was illegal. It constitutes an infringement of portrait rights. If everyone who knows and is familiar with the plaintiff believes that the faceless photo belongs to the plaintiff, the plaintiff should win the case. 3. Textual descriptions are not representations of portraits, such as a certain person, with a pointed mouth and monkey cheeks, a nose that has been blocked all year round, an unpleasant stench, and a pair of beetle eyes flashing disgusting glances. This requires brain reprocessing and does not fall under the category of portrait rights. If there is any infringement, reputation rights infringement can be used to resolve it. 4. Buildings do not have portrait rights, but according to the new Copyright Law, there are works, which are a type of work. 5. Copyright, which is closely linked to the right of portrait, has two rights in one thing. The right of portrait is a basic right, and the copyright is a derivative right.
2. The composition of infringement of portrait rights and the exercise of portrait rights
In terms of confirmation of portrait right infringement, according to Article 100 of the General Principles of the Civil Law, "No profit-making is allowed without the consent of the individual." "There are only two constitutive requirements for using a citizen's portrait. The first condition is sometimes too broad in practice. It seems that the person's consent must be obtained at all times, and there are three additional conditions: no "preventing illegal reasons." Regarding "preventing illegal reasons", it means that although an act is carried out that is not allowed to be carried out in principle according to the law, there are reasons specifically provided by the law that do not constitute an illegal act, thus making the act a legal act and thus preventing the illegal act. sex. Mainly include:
①Public welfare: To protect social needs, such as exhibition of advanced mission photos, filming and publishing criticism of uncivilized behavior, wanted fugitives;
②Personal interests: publishing missing persons Announcement;
③News nature: News reports, portrait rights are submerged in gatherings, queues, and ceremonies, and portrait rights are not allowed to be claimed. Similarly, individuals in group photos are not allowed to claim portrait rights;
④ To record a specific public event, use the portrait of a participant. Participation is equivalent to a commitment to the use of the portrait rights.
On the contrary, the requirement of "for-profit purposes" is used, but this view is sometimes too narrow to protect the legitimate rights and interests of citizens. For example, some people illegally use other people's portraits (for example, deliberately using a wide-angle lens to look at the "tusks" of their mouths next to a wild boar portrait). This is not for profit, and it also constitutes an infringement. Therefore, you can add the restriction "but there is an exception for the insulting use of likenesses". To sum up, the practical elements of portrait right infringement are: without the consent of the person, for the purpose of profit (except for insulting use), and there is no "reason to prevent the violation of the law".
3. Civil Liability for Infringement of Portrait Rights
Civil liability for infringement of portrait rights includes stopping the infringement, eliminating the impact, making an apology, and compensating for losses. The loss caused by infringement of portrait rights is generally mental compensation, and the judge’s will is relatively large. Regarding how to determine the standard of compensation for mental damage, Article 10 of the Supreme Court's "Interpretation on Several Issues Concerning Determination of Liability for Mental Damage in Civil Torts" "The amount of compensation for mental damage is determined based on the following factors: (1) The degree of fault of the tortfeasor, other laws Except where specified; (2) The specific circumstances of the infringement, such as the means, occasion, and mode of conduct; (3) The consequences of the infringement; (4) The infringer’s profits; (5) The infringer’s financial ability to bear liability (6) The average living standard in the location of the court where the lawsuit is filed. If laws and administrative regulations have clear provisions on disability compensation, death compensation, etc., the provisions of the laws and administrative regulations shall apply." It is mainly for the judge to freely consider the above factors. At the same time, the principle of differential treatment and the principle of appropriate restrictions should be applied. Different regions, different parties, different scopes of influence, and different natures of cases make it difficult to apply one standard. I think the standard of compensation can be grasped from three aspects: (1) It must have a punitive effect on the perpetrator; (2) It must have a comforting effect on the victim; (3) It must have an educational effect on society. The amount of compensation that meets the above three requirements is correct.
Each region can set appropriate limits based on local economic conditions and per capita income levels, but in principle the amount of mental damage compensation should not be uniform and must be subject to the discretion of the judge.
Example 1: Watsons Body Search: A 19-year-old female college student in Shanghai angrily sued after being searched in a supermarket of Shanghai Watsons Daily Necessities Co., Ltd. The Shanghai Hongkou District People's Court recently ruled in the first instance that the defendant should publish an apology to the plaintiff Qian Yuan in a newspaper within ten days and pay compensation of 250,000 yuan for mental losses and other expenses. On July 8, 2001, when the plaintiff Qian Yuan left the Watsons Sichuan North Road store, the door alarm suddenly sounded. The defendant ignored the plaintiff's objections and forcibly took her into the office for a strip search, but found nothing. The plaintiff strongly protested and demanded an apology and compensation from the defendant, but the defendant failed to agree. The plaintiff then sued the court, demanding an apology from the defendant and compensation of 500,000 yuan for mental losses and other expenses. The first-instance judgment awarded 250,000 yuan in compensation for mental losses. "Watson's" appealed that the consumer did not provide evidence that he was forced to take off his pants, so the infringement fact could not be determined. But what is regrettable is that when "Watson's" did not provide sufficient and effective evidence, the second-instance court blurred the details of "whether she was forced to take off her pants." In fact, it supported part of "Watson's" claims and changed the sentence to 10,000 yuan. This also illustrates the scope of the judge’s discretion.
Example 2: People and dogs eat together: In the embassy and consulate area of ??the Shanghai Concession, the Qing government was corrupt and incompetent after the Opium War. There was a sign in this area saying "Chinese and dogs are not allowed to enter". According to reports, Shaanxi Province The Jintai District Court of Baoji City ruled that the plaintiff lost the case in which "people and dogs eat together". The facts of the case are: At noon on August 1, 1999, Wang and his wife went to dine at the Xiangyangge Restaurant owned by Xiangyang Catering Co., Ltd. in Baoji City. During the meal, two women and their Pekingese dogs were fed at the table with food bought from the restaurant, using the restaurant's public tableware. Wang believed that his personal dignity had been violated, so he sued under the Consumer Rights and Interests Protection Act and demanded that the restaurant compensate 25,000 yuan. Article 14 of the Consumer Law stipulates that “consumers have the right to have their personal dignity and national customs and habits respected when purchasing and using goods and receiving services.” In the case of "dogs eating together", what is involved is the issue of moral compensation for human dignity. Unfortunately, the court dismissed the plaintiff’s lawsuit because the restaurant did not intentionally do so.
IV. Some cases regarding portrait rights
Case 1. Carina Lau and Shantou Yalisi Cosmetics
Shantou Yalisi Industrial Co., Ltd. has not obtained permission from Hong Kong Movie star Carina Lau agreed to have her portrait printed on the packaging bags of cosmetics. After collecting evidence in Shanghai, Carina Lau sued Yalisi Company in Shanghai, demanding a stop to the infringement, an apology and compensation of 1 million yuan in losses. The case was settled through mediation and the compensation was 100,000 yuan. I heard that most of it was given to Project Hope.
Strictly speaking, in photography activities, as long as one of the following circumstances occurs, it can be regarded as infringing on the portrait rights of others.
1. The act of using the portrait without the consent of the portrait owner without any illegal reasons.
The act of using the portrait owner’s portrait without his or her consent is also called “improper use of another person’s portrait.” The legal provisions on portrait rights in my country's civil law basically provide for the "improper use" of portraits. This improper use is divided into: "for-profit" and "non-profit" illegal use. We cannot think that as long as the purpose is not for profit, or with the consent of the portrait rights holder, a citizen's portrait can be used arbitrarily for non-profit purposes. This understanding is one-sided. Article 100 of my country's "General Principles of Civil Law" stipulates: "Citizens enjoy the right to portrait, and citizens' portraits may not be used for profit without their consent." Article 139 of the Supreme People's Court's "Opinions on the Implementation of Several Issues (Trial)" , this kind of infringement is limited to the scope of: "for the purpose of profit, using the citizen's likeness for advertising, trademarks, window decoration, etc. without the consent of the citizen." Article 120 stipulates: "Citizens whose rights to name, portrait, or reputation have been harmed have the right to demand that the infringement be stopped, their reputation restored, the impact eliminated, an apology made, and compensation for losses."
In The non-profit use of another person's likeness without the person's consent is legal only if there is a reason to prevent the violation of the law.
Such as news reports, "wanted orders" issued by the public security organs to apprehend criminal suspects, etc.
The right to portrait, like the right to name, has exclusive rights. The possession, use and disposal of one's own portrait can only belong to the citizen himself, and no one else can enjoy it without his consent. Infringement of portrait rights does not consist in using citizens' portraits for profit, but in disrespecting citizens' exclusive rights to their portraits. Therefore, regardless of the purpose, the citizen's consent must be obtained to copy, disseminate, or exhibit a citizen's portrait, otherwise it will constitute an infringement of portrait rights.
2. Making portraits of others without authorization (including possessing photos of others). The act of creating and possessing other people's portraits (photos) without their consent. For photographers, it is the act of secretly taking photos of others.
Portrait is the external expression of a citizen’s “personality”, and only the person has the right to decide whether to reproduce his or her own image. As for whether the portrait is produced (photographed) for public publication or private collection, it does not affect the composition of the infringement of portrait rights. That is to say: even if it is not used publicly, it still constitutes infringement, such as a photo studio privately printing and storing customer photos, etc.
3. Maliciously insult or deface other people’s portraits. That is, the wrongdoer maliciously infringes the portrait of others or destroys the integrity of the portrait of others by insulting, vilifying, defiling, damaging, etc. Including altering, distorting, burning, tearing or hanging other people's photos upside down, such behavior not only constitutes an infringement of the right of portrait, but also often constitutes an infringement of the right of reputation.
Based on the above, in photography practice, there are often three situations that constitute infringement of portrait rights:
In recent years, there have been reports of so-called infringement of “portrait rights”. There seems to be a growing trend, why? I think there are many reasons, but they can be boiled down to three types: first, the photographer does not understand the law; second, the photographer intentionally infringes on other people's portrait rights with the intention of "profiting"; third, the person being photographed does not understand the law of portrait rights Meaning, as long as you see your own portrait published in the newspaper, you will sue for compensation.
1. "For profit" must meet two conditions: First, the use of other people's portraits without the person's consent. The second is that the behavior is for profit and infringes on the portrait rights of others, that is, the user subjectively hopes to obtain economic benefits through the use of other people's portraits. However, the so-called "profit" is not what we usually understand. There must be actual profit-making, as long as there is a subjective intention to make a profit and there is an objective profit-making behavior, regardless of whether the perpetrator achieves the profit-making purpose, it will constitute a "profit-making" fact.
2. Infringement of others in any form. The right of portrait (right of reputation, right of honor) is also subject to legal liability: that is, the victim has the right to ask the infringer to stop the infringement, restore his reputation, eliminate the impact, apologize, and compensate for losses. It can be seen that without the permission of the portrait right owner, If the use of another person's portrait without profit-making causes actual damage to the portrait right holder, such as causing mental damage to the portrait right holder, the user will also be liable for infringement (portrait right). In judicial practice, There are also many cases of defacement, vilification, and distortion of citizens' portraits that are not for profit.
The above can clearly show that whether it is "for profit" does not determine whether there is infringement of a citizen's portrait. It is the only prerequisite and requirement for the copyright, and is only an important factor in determining the extent of infringement liability.
3. Although the portrait right holder agrees to use his or her portrait, the user has exceeded the scope of use permitted by the portrait right holder. Area of ??use and time limit of use. This situation does not require actual damage to the portrait rights holder to constitute tort liability. Of course, this situation is generally a matter of civil liability for breach of portrait rights.
Methods of liability
The main methods of liability for infringement of portrait rights in my country include stopping the infringement, eliminating the impact, making an apology, and compensating for losses. Apology is a non-property liability method, and compensation for losses is a property liability method. In my country's judicial practice, the determination of tort liability is generally as follows: First, "profit-making purpose" is the standard for compensation.
That is to say, regardless of whether the circumstances are "serious" or not, and regardless of whether it is profitable or not, as long as the purpose of the illegal use is to make a profit and the portrait right holder demands compensation, the infringer must bear liability for compensation. Second, for those who infringe on portrait rights for non-profit purposes, that is to say, the determination of compensation for damages to moral interests for infringement of portrait rights is based on the basic standard of “serious circumstances.” If the circumstances are minor and do not cause serious consequences, material compensation will generally not be awarded.
According to my country's laws and judicial practice (mainly the latter), based on certain specific circumstances and social public interests, the portrait can be used reasonably without the consent of the portrait owner:
Generally speaking, one is not allowed to use the portrait without the consent of the portrait owner. However, in some cases, the portrait can still be used without the consent of the portrait owner, which does not constitute an infringement of the portrait. rights, which provides a defense for those who use another person's likeness. These defense grounds provide users with conditions for fair use and prevent the illegal use of their portraits without the consent of the portrait rights holder.
Although our country has not formulated specific legal provisions in this regard, in judicial practice, the following are generally understood:
1. In order to safeguard the interests of the country and the needs of society, the use of Portraits of newsworthy public figures. Such as the use of portraits for reporting on the deeds of national leaders, political activists and advanced figures.
Public figures are people who have a certain identity and status and are newsworthy. They are generally celebrities from all walks of life. Their activities often involve the country’s politics, economy, social life, culture and entertainment, etc. In all aspects, therefore, the use of his likeness for reporting his deeds should be considered fair use. First, the use of portraits of public figures is necessary to safeguard national and social interests. Public figures are people who have a certain identity and status and are newsworthy. They are generally celebrities from all walks of life. Their activities often involve all aspects of the country's politics, economy, social life, culture and entertainment. Therefore, it is important to report their deeds. The use of their portraits should be fair use, such as national presidents, politicians, diplomats, scholars, inventors, writers, artists, actors, athletes, successful industrialists, etc., which have news value and are used to report their activities. Although the portrait is taken without the consent of the person, it does not constitute infringement. For example, the case where CCTV host Chen and Public Security University teacher Li sued COSCO Pharmaceutical Company for infringement of their portrait rights is an example. On July 5, 2000, Chen and Li lost the first instance trial at the Fengtai District People's Court of Beijing. The facts of the case were that because the plaintiff’s photo taken at the COSCO Photography Exhibition appeared in the defendant’s advertising brochure, and the photo was processed to dilute the background, Chen and Li believed that Shanxi COSCO had infringed upon their right to portrait. Go to court. After investigation, the court held that the COSCOW Photography Exhibition where Chen and Li took a group photo was a social activity of a public welfare nature. It can be disseminated openly to the public, and the technical processing on the photo has not affected or distorted the expression of its main content. In addition, the advertising brochure compiled and printed by COSCO Wei is to increase the company's visibility and create a good corporate image. It does not have direct profit-making purposes and does not violate relevant national laws and regulations. Every citizen enjoys the right of portrait, but the exercise of the right of portrait should be subject to certain restrictions. In the end, the court ruled that the portrait rights of Chen and Li had not been infringed.
2. Use portraits of people who attended specific events on specific occasions. Such as portraits of people participating in various rallies, parades, ceremonies, celebrations and other activities. Such activities are often of news value. Participants who participate in them have already given up their image rights to a certain extent. No one who participates in such activities may claim their image rights. The use of portraits formed on these specific occasions should not constitute an infringement of portrait rights, but a reasonable use of the portrait.
3. In photography creations in scenic areas, people are used as embellishments, or photos are taken to include other people in the photos. In these situations, people are not the main subjects;
4. In order to exercise the legitimate right of public opinion supervision (the Constitution stipulates that citizens have the right to supervise), to criticize certain uncivilized behaviors and behaviors, to condemn the perpetrator's illegal or immoral behavior, to educate the public to abide by the law and respect social morality, Maintain social order, etc., and use citizens’ portraits to publish their uncivilized behaviors. Such as photographing behaviors that damage public property and pollute the environment;
5. Use his or her portrait for the benefit of the person with the portrait right, the interests of other natural persons and other social welfare purposes. For example, a photo of the person used to publish missing person notices in newspapers, magazines, and television in order to search for a missing person.
6. In litigation activities, citizens’ portraits are used as evidence (in criminal or civil cases, during the litigation stage); state agencies compulsorily use citizens’ portraits to perform official duties. For example, the public security organs use their portraits to create wanted warrants in order to hunt down fugitives or other criminal suspects.
7. National agencies use citizens’ portraits for the purpose of enforcing and applying laws (such as in the process of administrative law enforcement);
8. Within a certain scope for the purpose of scientific research and cultural education Using other people's portraits (mainly refers to the scope of social disclosure), such as displaying patient photos on specific occasions or in professional newspapers and magazines for the purpose of clinical medical teaching and scientific research. Use citizen portraits.
Therefore, I personally believe that the following aspects should be paid attention to when using citizen portraits:
1. Correctly understand the "illustrations, illustrated photos" and news photos, The difference in photojournalism.
2. Standardize picture captions. (Such as the naming of the work, etc.)
3. Don’t believe in “verbal agreements”.
4. Be cautious about using pictures on magazine covers.
5. When submitting your work (for newspapers, magazines, and various film competitions), be sure to add restrictions on the use of the work after the description.
6. When participating in various photography activities that employ models, pay attention to the agreement between the organizer and the model.
7. The key is to obtain a written agreement from the portrait rights holder.
Although the law has already defined the infringement of citizens’ portrait rights, with the development of my country’s market economy, especially after joining the WTO, the use (scope) of photographic works has become increasingly difficult to get rid of. The influence of "interests", especially the penetration of economic factors. Therefore, overall, my country's laws regarding the legal protection of portrait rights are still relatively principled. For example, how to define what is "for-profit", whether the pictures on the news media are for-profit; the right to use the portrait of public figures, especially the right to use the portrait of politicians and the entertainment industry; the definition of the right to use the portrait of the deceased, etc. When we deal with photographic portraits, the problems we encounter are often very specific. Therefore, it is very difficult when we rely on these abstract terms to deal with the specific things we encounter. The most difficult thing here is " Profit purpose”. In view of this, as a photographer, when taking portraits of people, especially when using them, you should pay more attention: be cautious, follow the law, and have evidence - these three points are very important. What I mean is that everyone has portrait rights. If you want to use other people’s portrait rights, you must obtain the consent of others - this is the safest way (so today I specially brought some information about "image use" and "works". Samples of contracts and agreements for "agency" and other aspects are for your reference only).
Some common questions about "portrait rights":
1. Does the company have the right to use the portrait of its employees?
The answer is yes: no!
2. Does the right of portrait only concern the “face”?
No! Whenever people see a portrait, they will always think of the recorded personality traits of the legal subject. This personality trait is an important resource in human society, and its potential huge commercial value is especially valued by modern business society (such as A recent TCL mobile phone advertisement featured a Korean female movie star.
)
Visual images of other body parts with distinctive characteristics will also be reminiscent of the legal subject being recorded and the personality characteristics of the legal subject. Therefore, the vision of other body parts with obvious characteristics also belongs to the portrait and is within the scope of portrait right protection.
Whether it constitutes a "portrait" is centered on the frontal face of the natural person. It should also test the cognitive level of ordinary people in society and make a comprehensive and comprehensive judgment. It can be seen that if the profile or other parts are shown, and generally familiar people can judge who it represents, then the profile or other parts also constitute a "portrait".
3. Are there portrait rights issues in group photos?
Yes. As we all know, the personality right of the portrait right holder of an individual's portrait exists independently. Once it is infringed, the portrait right holder can claim his rights against the infringer in accordance with the law. However, the portrait right of a collective portrait has its own characteristics. A collective portrait is a collection of independent portraits of each right holder, and has the characteristics of independence and identity. First, each portrait rights holder enjoys independent personality rights in the photo; on the other hand, the collective portrait is physically indivisible (everyone has the right to independently claim rights).
From the current judicial practice, generally: if the user maliciously damages, stains or vilifies a specific person in the collective portrait, the proportion of the specific person's personality rights is sufficient. Covering all portrait rights holders, it is obvious that their portraits have been infringed.
Secondly, when judging whether the use of a collective portrait infringes upon the portrait rights of a specific individual in the collective portrait, does the user do it for profit-making purposes and does it have commercial use? It should be a basic basis.
It can be seen that the legal protection level of collective portraits is lower than that of individual portraits, that is to say: the individual portrait rights in collective portraits are subject to certain restrictions, and such restrictions are limited to ensuring that all those taking the group photo can use it reasonably. . (Just because the current law is not perfect)
4. Does taking photos of others quarreling constitute an infringement of portrait rights?
This depends on whether there are any circumstances that would prevent the violation of the law. For example, a salesperson in a store had an argument with a customer and had a very bad attitude. From the perspective of social benefits, the salesperson's bad attitude and unreasonable behavior with customers violate the professional ethics of the salesperson and are also a negative phenomenon in society. Disclosure of such negative phenomena is beneficial to the progress of society. Therefore, such an incident is undoubtedly a social news. Any citizen has the right to report in the news, and taking news photos is one of the means of news reporting. Taking photos of such scenes is the use of other people's portraits for the benefit of social public welfare and does not constitute an infringement of the salesperson's portrait rights.
But if two brothers are quarreling, so will you. . . Generally speaking, no. . . .
5. Can administrative agencies or relevant units conduct "photo exposure" of citizens' portraits?
For example, if a few thieves were caught at a bus station, but it was not a crime, they would work with the local police station to post their portraits in the shopping mall for "photo exposure" in order to remind passengers to pay attention. This seems to have good intentions and good intentions, and there are also illegal reasons for the "thief incident", however. . . .
It is extremely dangerous to use other people’s photos at will, especially to post other people’s photos in public places, and to cause negative evaluation of that person by an unspecified majority of people due to such posting and related text descriptions. It may constitute an infringement of the portrait rights of others. The above-mentioned "thief incident" can only be solved through legal channels and procedures. Even if it is a crime, the people's court can only issue a notice in accordance with legal procedures and regulations.
According to the "Administrative Penalty Law", the types and extent of administrative penalties can only be set by laws, regulations and departmental rules, and other normative documents may not set administrative penalties. There is a principle here: as far as administrative agencies are concerned, government agencies cannot do anything that is not authorized by law; as far as citizens are concerned, as long as the law does not prohibit it, citizens can do it.
Therefore, after searching all the laws, regulations and rules, we cannot find that the public security organs can punish citizens by posting their photos in public places.
Therefore, the behavior of the police station is an arbitrary infringement.
6. After it is known that it has been "infringed", what is the victim's protection period?
I remember a very famous photo, "The Taste of Bankruptcy" (news photo). The text accompanying the photo is: "The person smoking a cigarette is Shi Yongjie, the former director of the Shenyang Explosion-proof Equipment Factory." The photo was taken in 1986 and published in the China Youth Daily. It once caused a sensation across the country. Later, the photo was often seen in newspapers and other media. In April 1999, Shi Yongjie brought the author and relevant media to court, arguing that the report actually belittled and vilified the plaintiff and violated the plaintiff's right to portrait and reputation.
According to my country's "General Principles of Civil Law", the statute of limitations for petitioning the People's Court for protection of civil rights is two years. That is to say: if the right holder does not file a lawsuit with the People's Court in accordance with the law within 2 years from the date when he or she knows or should know that his or her rights have been infringed, the right holder no longer has the right to request protection from the People's Court. That is to say, the rights holder's right to win the lawsuit is eliminated. Therefore, in fact, Shi Yongjie's lawsuit has exceeded the statute of limitations stipulated by law and has no right to win.
7. The principle of honesty and credit!
I remember that in the "People's Photography" newspaper, an author wrote an article "A way to deal with portrait rights entanglements", explaining how he obtained the so-called "letter of authorization" from the portrait rights holder. . That is, after taking a photo of the subject, ask the subject to leave his name and address on a blank piece of paper, and an enlarged photo will be sent to the subject. In fact, the other side of the blank paper is a folded page with consent written on it. Make a statement like that. This kind of practice is really not advisable!
my country's "General Principles of Civil Law" and "Contract Law" both provide for "invalid civil acts". For example, Article 52 of the Contract Law stipulates that if one party concludes a contract by means of fraud or coercion, it shall be deemed an invalid contract.
At the same time, my country's "General Principles of Civil Law" also stipulates corresponding principles, one of which is: the principle of "voluntariness, fairness, equal compensation, and good faith", among which the "good faith" principle is called The "Emperor's Clause" here refers to: First, civil subjects must exercise their rights and perform their obligations in good faith in civil activities, and must not abuse their rights, harm the interests of others, or violate the interests of the state or society. . Second, the interpretation of the contract should be based on good faith. That is, when a court or arbitration institution interprets a contract, it should determine right and wrong and determine liability based on the principle of good faith. The third is to make up for the shortcomings of legal provisions with the principle of good faith. What is important is that on this last third point, the principle of "good faith" gives judicial officers a certain degree of discretion! That’s why people call it the Imperial Clause. That is to say: in the case of legal loopholes, the principle of good faith can interpret and fill the law.
Therefore, never try to be smart. You must know that "you will be misled by your cleverness."