The Collection, Use and Disclosure of Pictures and Images: A Discussion Paper

by Steve Indig.

It is common practice for organizations to post images and pictures of athletes and members of their organization on web sites or in other publications for the purpose of marketing or providing information about the organization. It is important to be familiar with Canadian case law and the Protection of Personal Information and Electronics Documents Act (“PIPEDA”) to understand the risks and liabilities associated with publicly displaying pictures when consent to do so has not been obtained.

Personality rights encompass the exclusive right of an individual to market, control and profit from the commercial use of his/her name, image, likeness and persona. The distinctive characteristics of one’s image, likeness or persona include but are not limited to name, face, body or recognizable body part, voice or voice impersonation, photograph, look-alike, signature phrase, paraphernalia or action, costume or personals signature. For example, Wayne Gretzky’s number ‘99’ is synonymous with the celebrity of Gretzky himself and a commercial use of ‘99’ in Canada, the hockey community or sporting world would likely be perceived as an association with him.

Personality rights, generally speaking, consist of two types of rights, the right to privacy and the right of publicity. The right of privacy is the right to keep one’s image and likeness from exploitation without permission or compensation and generally applies to members of the general public. The right of publicity is the exclusive right of an individual to market his or her image, likeness or persona for financial gain.

Organizations in Ontario must also be mindful of their obligations under PIPEDA. PIPEDA requires an organization to determine if information is, first and foremost, personal information and secondly, if the information is being disclosed during a commercial activity. All marketing initiatives are considered to be of a commercial nature and are therefore subject to PIPEDA. A best practice would entail only posting personal information where consent has been obtained from all affected individuals, or from a person who is legally authorized to consent on the individual’s behalf.

Canadian case law has also dealt with the publication of images under tort law and the Canadian Charter of Rights and Freedoms (the “Charter”). A tort is a harm caused by one person to another, other than through breach of contract, and for which the law provides a remedy. Tort can be intentional as in an assault, or unintentional as in negligence. Damages in tort are awarded to the plaintiff to compensate for loss or injury that arises from the culpable conduct of the defendant.

“Misappropriation” of personality and “passing off” of personality are two torts defined by Canadian courts through which individuals may seek damages for the unauthorized use of their personal image. Section 2(b) of the Charter allows everyone to have fundamental freedoms including the freedom of the press and other media of communication. An explanation of each tort and section 2(b) of the Charter is set out below.

Passing Off

The action of “passing off” constitutes the sale of goods or the carrying on of a business under a name, mark, or description in such a manner as to mislead the public into believing that the merchandise or the business is that of another person. The law is designed to protect traders against a form of unfair competition, which consists of acquiring for oneself by means of false or misleading devices the benefit of the reputation already achieved by a rival trader.

In McCulloch v. Lewis A. May [1947] 2 ALL E.R. 845, Wynn-Perry, J. described the tort as follows:

It is of the essence of an action of passing off to show, first, that there has been an invasion by an organization of a proprietary right of another individual, in respect of which the individual is entitled to protection, and secondly, that such invasion has resulted in damage or that it creates a real and tangible risk that damage will ensue. The right to protection in an action of passing off must depend on the showing that the individual enjoys a reputation in that name in respect of some profession or business that he/she carries on or in respect of some goods which he/she sells. Further, he/she must show that the acts of the organization or individual have interfered or are calculated to interfere with the conduct of his/her profession, business or selling goods, in the sense that those acts have led or are calculated to lead the public to confuse the profession, business or goods of the individual complainant with the profession, business or goods of the organization.

The tort of “passing off” is an aspect of law that sport organizations may not have to concern themselves with, as most images being used by sport organizations are not associated with individuals who own a business or sell goods. Organizations should be aware of this tort should they decide to use images of individuals who do fit into the test described above. In such situations, it is highly recommended that consent be obtained.

Misappropriation of Personality

The tort of misappropriation of personality was first introduced in Canada in the case of Krouse v. Chrysler Canada (1974), 1 O.R. (2d) 225. The tort can be expressed by stating that every individual has an exclusive right to market, for financial gain, their personality, image and name, and that the law entitles an individual to protect that right, if it is invaded. The tort of misappropriation of personality can be invoked when all of the following four elements are met:

1.        There is an element of commercial exploitation of a person’s personality. There must be a sufficient link between the individual and the exploiting medium to establish that the plaintiff’s personality was “used” for the defendant’s commercial gain.

2.        The person is clearly identifiable in the medium used and to their respective community or communities.

3.        The person does not consent to the use of their personality.

4.        Damages, either emotional or financial losses, are proven (although recent judicial rulings would indicate the right of privacy is recognized even in the absence of damages)

In 1970, Chrysler Canada distributed a device bearing the names and numbers of all professional football players, which was designed to assist people who watched professional football on television to identify the players. The device also advertised Chrysler’s automobiles. On the device there was an action photograph of a football game which focused attention on Bobby Krouse, number 14 for the Hamilton Tiger-Cats, locked in a tackle with his back to the camera. Although other players were visible in the picture, Krouse was clearly the centre of focus and his number alone was visible.

The photograph was taken by a photographer who had been admitted to the Hamilton Civic Stadium by a press pass given to him by the Tiger-Cats football club. The photographer subsequently sold the image to the advertising agency used by Chrysler to produce the device. Krouse took exception to the use of his photograph in this manner and sued Chrysler Canada.

On appeal it was determined that there was no passing off as Krouse and Chrysler were not in a common field of endeavor and the buying public would not be led to believe that the manufacturer’s products, or the advertising device itself, had been designed or manufactured by the player. Nor was there a similar product being marketed by Krouse.

As well, the court ruled there was no misappropriation of personality as exposure through the publication of photographs and information is the life-blood of professional sports. A minor loss of privacy and even some loss of potential for commercial exploitation are to be expected to occur as a by-product of the express or implied license to publicize the game itself. Chrysler had sought a trade advantage through association with the game of football generally, and it was the game of professional football rather than the personality of Krouse which had been deliberately incorporated in the advertising campaign.

While the appellate court in Krouse appeared to envision a narrow basis for the tort, the ruling of the Ontario High Court in 1977 in Athans v. Canadian Adventure Camps (1977) 17 O.R. (2d) 425, arguably formulated a more inclusive cause of action. In this case the plaintiff was an expert water-skier with an international reputation. He had a characteristic and distinctive photograph of himself water-skiing, which he used for commercial purposes. The defendant, a public relations firm, copied the photograph and published it, as a line drawing, in a brochure advertising a summer camp for children. The defendants intended to simply depict a water-skier in action. The defendants determined that there was no need for the plaintiff’s consent since the line drawing was a ‘stylization’. The plaintiff’s name was nowhere used in the brochure, but the drawing would have been identifiable by a small circle of knowledgeable persons.

The Ontario High Court of Justice held that there no case of passing off was made out, since the persons likely to read the brochure were not likely to identify the drawing as a picture of the plaintiff. The defendants were, however, liable for the tort of misappropriating the plaintiff’s personality, as the reproduction of the drawing for commercial advantage represented an invasion of the plaintiff’s exclusive right to market his personality. The measure of damages was the amount he ought reasonably to have been paid for permission to publish the drawings.

The court recognized that Athans had a “proprietary right in the exclusive marketing for gain of his personality, image and name.” The Athans judgment focused on a crucial question – whether there was an appropriation of the personality, or goodwill surrounding the name or image of an individual, for commercial gain. The commercial use of his representational image by the defendants without consent constituted an invasion and impairment of Athan’s exclusive right to market his personality.

It is interesting to note that the court found for Athans despite the fact that the image itself would have been recognizable as relating to Athans himself by only a limited number of people.

Athans and Krouse remain the high-water marks in Canadian law relating to the protection of personality rights. However, even with later cases, it has remained difficult to clearly define principles to describe what actions do, and do not, constitute an unauthorized taking at Canadian law. Despite this ambiguity, it is very clear that obtaining consent is a simple step that will, in all cases, ensure that the tort is not established.

The case of Aubry v. Editions Vice-Versa [1998], 1 SCR 591, may indicate where the law in the area of personality rights and the tort of misappropriation of personality is headed in Canada. It seems the courts are now willing to recognize an individual’s right of privacy even in the absence of damages.

This case was decided by the Supreme Court of Canada subsequent to the provisions of Quebec’s civil law and Charter of Rights which statutorily recognize a person’s right of privacy in Quebec. The case involved a young woman whose identifiable picture, taken in a busy public setting, was published in a newspaper without her permission. The Supreme Court ruled that damages could be awarded in these circumstances and that the right to privacy encompasses the ability to govern the use of one’s own image, regardless of whether the use is favorable and not detrimental to the person’s reputation.

Further, the Court determined that the woman’s right to safeguard her image, even in the absence of damages, was more important than the newspaper’s unauthorized right of publication. However, on the grounds of freedom of expression, the Court also stipulated that only persons engaged in public activities, who have acquired a certain notoriety or are accidentally and incidentally included in pictures in public places can be included in photographs without their permission.

 

The Canadian Charter of Rights and Freedoms

Section 2(b) of the Charter states that "Everyone has the following fundamental freedoms: ... freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication." The section potentially could cover a wide range of actions, from political expression to hate literature to pornography. For the purposes of publishing photo images and personal information, the main issue is that of journalistic privilege.

Freedom of expression is a cornerstone of a functioning democracy. Freedom of expression promotes certain societal values. There are, of course, limits to free speech and free press guarantees, as the Canadian Supreme Court is quite ready to point out (see CBC v. A.G.N.B., [1991] 3 S.C.R. 459). For example, even though the press enjoys core constitutional rights of access and publication, they do not have protection for all operational means and methods the press may choose to adopt. The press does not, for example, enjoy immunity if they run a pedestrian down in pursuit of a news story under the guise of "freedom of the press".

The issue of journalistic privilege is illustrated in the case Gould Estate v. Stoddart Publishing Co. [1996] O.J. No. 3288. In this case, the estate of the deceased musician, Glenn Gould, sued the defendant author, Jock Carroll, and the defendant publisher, Stoddart Publishing Co., for damages.

In 1956, Carroll had interviewed Gould and taken several pictures of him for a magazine article. In 1995, after Gould’s death, Carroll published a book on the pianist which included the photographs, and in which the text was based largely on the interviews, without the consent of the pianist’s estate.

The action was dismissed by the trial judge, who determined that use of the celebrity as "subject matter", where the activity in question consists of thoughts, ideas, newsworthy events or matters of public interest, did not constitute a tort. The judge concluded that Gould was the subject of the book and that there was a public interest in knowing more about him. The book, therefore, fell into the protected category of the Charter, and there was no right of personality that had been unlawfully appropriated by the defendants.

The Supreme Court of Canada provided a further explanation, and stated that the media has a vitally important role to play in a democratic society. It is the media that, by gathering and disseminating news, enable members of our society to make an informed assessment of the issues that may significantly affect their lives and well-being.

In summary, section 2(b) of the Charter provides the media with a privilege to publicize images collected if the subject matter is newsworthy or relates to matters of public interest. In such situations, consent is not required from the individual. However, most private organizations and businesses are not media outlets, nor are sport organizations required to comply with the Charter in the delivery of their programs and services, thus the privilege that the Charter gives to the media does not extend to sport organizations.

PIPEDA

The Personal Information Protection and Electronic Documents Act, or PIPEDA, sets out rules for the collection, use and disclosure of personal information by businesses and organizations, including sport organizations. PIPEDA allows for several exceptions, but none of them relate to the use or disclosure of photo images. Consent must be obtained from an individual prior to the collection, use, disclosure or selling of personal information. The purpose for which information is being collected, used, or disclosed must be made clear to the individual at the time of collection, when their consent is obtained.

It is important for staff and leaders of sport organizations to not only think critically about what is being posted on their web sites and published in their newsletters, but also to make others in the organization aware of the importance of obtaining consent. With careful planning and forethought, consent can usually be obtained without much difficulty. When consent is not obtained, an organization may have to take steps after the fact to correct an escalating problem, which will consume far more time and energy than would have been required to obtain consent in the first place. The organization also runs the risk of being challenged legally under the complaint procedures of PIPEDA.

As a general principle, organizations should not post personal information on their web sites or in other publications without obtaining written consent of the individual to whom the information relates. There are several different types of personal information, some of which is more sensitive than others. When consent is obtained, the following personal information might be appropriate to post publicly:

  • Photographs of athletes, coaches, volunteers and staff
  • Name of athletes, coaches, and volunteers participating in a special event
  • Name of athletes, coaches and volunteers who have received an award or prize
  • The results of a competition

In contrast, the following information is highly sensitive and should probably never be included on a web site or in a publication:

  • Health information
  • Personal contact information such as home address or home phone number
  • Financial information
  • Date of birth

Although some individuals may never be concerned about their personal information being published or posted on web sites, others will be more apprehensive. In general, consent to post or publish an individual’s personal information should be obtained in advance, and should be obtained in writing. Such consent must be informed consent, meaning that the individual understands precisely what information is being published and the potential consequences of such disclosure. As well, the individual should have the right to revoke their consent at any time.

Who gives consent depends on the age of the individual. For individuals under the age of majority (18 in Ontario), a parent or the person having lawful custody should sign the consent form. Where the parents are separated or divorced, the parent with lawful custody should sign the consent. In cases of joint custody, either parent may sign. Individuals over the age of 18 years have the power to contract and may sign the consent form without any additional signature from a parent or legal guardian.

Conclusion

Canadian case law has developed two torts that allow for an individual to seek damages for the use of their personal image: the “misappropriation of personality” and the “passing off” of personality. Sport organizations should be aware of both torts so that they have a clear understanding of what the law permits them to do, and what recourse an individual might have if the organization fails to act within the law.

Section 2(b) of the Canadian Charter of Rights and Freedoms allows the media to use images of individuals if the subject is a newsworthy event or a matter of public interest. Therefore consent is not required in this context, but sport organizations are not deemed to be part of the media. This means that they will have to obtain consent to publish news stories and images on their web sites and in other media communications.

The Personal Information Protection and Electronic Documents Act establishes requirements for the collection, use and disclosure of personal information. It provides a number of exceptions, but basically consent must be obtained from an individual prior to the collection, use and disclosure of personal information. As part of obtaining consent, the organization must also clearly specify the purpose for which the information is being collected.

The solution for sport organizations wishing to use photo images or other personal information in their publicity and communications is simple – obtain prior consent. Consent that is properly obtained will protect the organization from claims of “passing off” or “misappropriation of personality”. Consent can be obtained at the start of the season, or at the time an individual athlete or a team registers for an event or competition. Consent can be obtained through the addition of a consent clause in a registration form, or through a stand-alone consent agreement. Templates of both, which may be adapted to suit each specific sport organizations’ circumstances, are shown below:

 

Example Clause for Registration Form

I hereby consent to the collection and use of my personal images, athletic results and awards and prizes received, by posting on the web site of ABC and/or by publishing in the newsletter of ABC. I understand that my personal information can be viewed by anyone who accesses ABC’s website or publications and that my consent can be withdrawn at any time.

 

Example Consent Form for Minors

I, ___________________, parent/legal guardian of ______________________, consent to the disclosure of personal information about _______________ by posting it on the web site of ABC and publishing it in its newsletter. This consent only applies to the following:

1. Photographs of (name of athlete)
2. Athletic results of (name of athlete)
3. Awards, scholarships, prizes received by (name of athlete)
4. (Other specific items identified by the organization)
I am aware that by giving this consent, I am permitting personal information about (name of athlete) to be published, which can be viewed by anyone who accesses ABC’s web site or publications, and that if consent were withheld, this posting and publication would not occur.
I further understand that this consent may be withdrawn by me at any time, upon written notice.
I give this consent voluntarily.

Dated: ________________________, 2004 __________________________________
Parent/Guardian signature

Dated: _______________________, 2004 ____________________________________
Witness

Model Consent Form for an Adult

I, ___________________, consent to the disclosure of personal information about me by posting it on the web site of ABC and publishing it in its newsletter. This consent only applies to the following:

5. Photographs of (name of athlete)
6. Athletic Results of (name of athlete)
7. Awards, scholarships, prizes received by (name of athlete)
8. (Other specific items identified by the organization)
I am aware that by giving this consent, I am permitting personal information about (name of athlete) to be published, which can be viewed by anyone who accesses ABC’s web site or publications, and that if consent were withheld, this posting and publication would not occur.
I further understand that this consent may be withdrawn by me at any time, upon written notice.
I give this consent voluntarily.

Dated: ________________________, 2004

Signature:  __________________________________

Originally published: Centre for Sport and Law website (May 2004)

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