Commons talk:Photographs of identifiable people/Update 2013/Consent

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{{divbox|amber|Proposal number and title|Introduction
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Scope Review 2013 links: Discuss stage 2 of this review Translation Help your community by translating the review Background Main review page: Background and process FAQ Links to current rules Project Scope Photographs of identifiable people Discussion: Introductory Scope wording Aim of Wikimedia Commons Excluded educational content Discussion: Files Must be a media file Must be an allowable free file format Must be freely licensed or public domain Licensing terms Evidence Precautionary principle 'Realistically useful for an educational purpose' PDF and DjVu formats Discussion: Pages, galleries and categories General pages, galleries and categories User pages, galleries and categories Discussion: Areas of particular concern Censorship "Neutral point of view" Discussion: Identifiable people Lead Legal issues Consent Moral issues Identification Examples Removal requests Other image sources Other proposals Other proposals

Proposal 1

• Please discuss the above proposal here

Proposal 2

--MichaelMaggs (talk) 06:55, 21 June 2013 (UTC)

• Please discuss the above proposal here
• The consent needs to be for publication as well as the taking of the photograph. Otherwise we open the gates to ex-girlfriend images. "No grounds for thinking" is too vague, I want explicit consent, not for Commons necessarily, but for publication. IMO this is already the community understanding of what level of consent is required. Otherwise I agree with the text above. --99of9 (talk) 11:05, 21 June 2013 (UTC)
  • Speaking of revenge porn, (ex-)girlfriend images and the like, Erik Möller made a good point the other day: "Even if they are uploaded in good faith ("I put them on Flickr with permission and now I'm uploading them to Commons"), it's still desirable to ask for evidence of consent specifically for uploading to Commons, because publishing a photo of a person in the nude in Flickr's NSFW ghetto is quite different from having that same photograph on Commons and potentially used on Wikipedia." That distinction is very important. The Flickr adult community is tucked away in a corner of Flickr, invisible to all but registered users who have explicitly opted in to viewing adult material. Where images taken in private situations are concerned, even consent to publication on Flickr should not be viewed as implying consent to publication on Commons and/or use in Wikipedia, where exposure of the image may be orders of magnitude greater. Andreas JN466 08:01, 25 June 2013 (UTC)
    • You make a great point, and this should be clear in the policy. Ottava Rima (talk) 01:02, 10 July 2013 (UTC)

• The first "What is meant by “consent”?" clause is not an improvement on the current text, which separates into 3: the consent to having ones photo taken, consent for it to be published/uploaded, and consent for particular uses. The "no grounds for thinking that the subject objected at the time to the image being upload to Commons" is very unhelpful imo. Very little photography is done with "upload to Commons" in mind at the time of the shot. In addition, othere parts of the guideline distinguish consent for specific publication (such as Flickr, Facebook, medical texts (online or otherwise)) and Commons publication and how we should be careful not to always assume that just because the image is already published on the net, that sticking it on Commons is fine. We mustn't merge these aspects of consent. So I'm not in favour of this new text being added. Colin (talk) 11:27, 21 June 2013 (UTC)

• IMO if consent has been given to publish for an unrestricted audience (e.g. public, not-adult-only Flickr, or public Facebook page), that is sufficient. I think we should amend the current guideline to say that this is our level of release required. We should also explicitly say that the subject does not get to choose to restrict the license (e.g. non-commercial).--99of9 (talk) 11:43, 21 June 2013 (UTC)

• I think your first suggestion needs more debate/exploration and to consider that people may not have realised how public they have made the photo. People aren't particularly clued-up about privacy and find the controls of Flickr/Facebook confusing. Someone may upload their family photos with all-access so their friends and family (who aren't on Flickr) can see them and not consider that anyone would be interested in them, scrape them of the page and stick them in a Wikipedia article. Whether this matters depends on the kind of photo, etc. Colin (talk) 07:23, 28 June 2013 (UTC)
• The subject may restrict the licence where their consent is required. In that situation, the degree of exposure and re-use conditions are part of a contract between subject and photographer and the photographer has no right to exceed this contract (e.g. offer CC BY-SA where the subject wanted no commercial use). And in all cases, consent required or otherwise, personality rights remain that limit commercial use (such as in advertising) without further consent. Colin (talk) 07:23, 28 June 2013 (UTC)

• Sure, the photographer may have all kinds of contracts that limit what s/he can do. But Commons does not have to get involved in that - we just need to know the end result from the photographer - what license do you release it under? The subject does not have to consent to anything related to the copyright licensing, because they do not own the copyright. Thus we should not require evidence that they have discussed this - if they haven't, it's up to the copyright owner. Sure, they can also enforce their moral and personality rights, but that is also not a copyright license issue. --99of9 (talk) 09:15, 28 June 2013 (UTC)

• The subject doesn't own the copyright but the license is a legal contract in addition to copyright. It say that the re-user may use the image for X purposes provided they do Y. If the licence terms allow commercial use, and the subject did not consent to commercial use and the image requires consent then the uploader has given the image an incorrect licence and we should be sympathetic to requests from the subject to remove it. Do you agree? In addition, if the uploader (here or on Flickr say) later regrets giving the image an CC BY-SA licence as they actually shouldn't have, then we should be sympathetic to request from them to remote it. Do you agree? I agree that mostly we shouldn't need to have evidence that the subject consented to commercial use, but perhaps there are cases where that might be appropriate. For example, typical medical consent forms are inadequate as they are quite specific about what re-use the patient can expect, and it is far too restrictive for Commons. For example, the patient agrees only for images being used for teaching within the hospital. If a doctor uploaded such images (in error), we should be sympathetic to requests from either the doctor or the patient to have them removed. Colin (talk) 10:37, 28 June 2013 (UTC)

• I cannot reply to your paragraph easily, because the number of different topics is getting too large. Please try not to introduce too many in one go. Regarding medical consent forms, if there is a signed agreement that the doctor is breaking, then it's basically illegal - they should get sued, we should delete it, and the uploader should be lucky if they are not blocked. But in the case of a photo in a private setting, where there was no agreement about a specific license, but publication in an open forum was agreed, then I don't think we should force the photographer to seek an agreement regarding their commercial rights (copyright). My understanding is that the license is only a contract from the copyright owner about making an exception to the normal rules of copyright. It does not alter in any way the rights of the subjects or any other party. When you say an uploader regrets that they "shouldn't have" released a CC-BY-SA image, I'd be sympathetic to this if there was a good reason that they shouldn't have, but sometimes the reason is that they later decide they want to monetize their photography, and I'm not very sympathetic to that. So anyway, if you agree that we mostly don't need the subject's commercial consent, just their publication consent, exactly when do we need their input on the license? Your medical example comes down to a guideline like "Do not upload photos of people with whom you have a signed agreement that explicitly states you can only use them for other things". Or do you mean to extend this to other cases? --99of9 (talk) 11:50, 28 June 2013 (UTC)

• Well you'd be surprised at the number of medical images we have that are likely on dodgy ground wrt consent. I know Doc James gets consent suitable for Commons for all his pics and I think some of Open Access medical journals have suitable consent forms that are good enough for us, but the rest is kind of unknown. We have a tradition of assuming good faith and like you say we don't require evidence to the n-th degree. But I wouldn't like some guideline saying what you proposed above that the subject can't restrict the licence. And licence problems like this aren't just for bad-faith things that would get the uploader blocked. Some countries (like India) just don't have a strong culture of concern for this compared to the UK, say.
• I agree that if someone was previously generous with a CC licence but later changes it to -NC or full copyright simply to make money or deny commercial use, we tend not to be sympathetic. If it appears the person made a contractual mistake or wrong assumption about the implied contract with the subject, then I think we should be sympathetic. Also if the person has simply made an upload mistake that they correct then I don't think we should penalise them -- for example if most of their images were copyright but they accidentally uploaded a batch with the wrong terms, or they accidentally forgot to set the "For family visibility only" option when uploading to Flickr. Anyway these examples aren't just concerning people photos so perhaps best discussed elsewhere.
• My problem with discussing these things here is that this huge multi-RFC isn't attracting much input from the community and I think there is a feeling it needs rebooted and to tackle one issue at a time. Colin (talk) 12:22, 28 June 2013 (UTC)

• The second removal suggestion is redundant. The current guideline text section "The right of publicity" explains that this right doesn't affect hosting on Commons. So I'm not in favour of this new text being added. Colin (talk) 11:27, 21 June 2013 (UTC)
• I feel the question/answer style of these suggestions is inappropriate for a guideline and leads to over-wordy responses trying to deal with all aspects of the question. Instead, the various aspects are best dealt with in a factual way in relevant sections. Colin (talk) 11:27, 21 June 2013 (UTC)

This is a topic of considerable community interest/importance. Please see Commons talk:Project scope/Update 2013/Stage 2 to discuss how we should proceed from here. --MichaelMaggs (talk) 18:15, 23 July 2013 (UTC)

Proposal 3

Withdrawn proposal

(This is based on the the 2009 discussions) --MichaelMaggs (talk) 06:55, 21 June 2013 (UTC) Please discuss the above proposal here Whehter or not it is spelled out as in this proposal, the need for consent is clearly a spectrum of need, depending on the context. Under Level 0, identifiability is also an issue worth mentioning, connected to moral rights. --SJ+ 22:39, 20 June 2013 (UTC) Please take time to read the guideline as of 2013. This is a proposal from 2009 which failed to gain consensus. I don't think a rules-based approach works. We aren't computer programs needing if/else/switch branches to decide deletion requests. I think it better if we present the facts, the issues and our stance on the issue (to the extent that we have one). Then readers can use this information to work out what is best in any situation. I think the above approach will result in people arguing if something is level X or level Y and not about what matters. The current guideline has examples too, so there's no point in having two sets of examples. It just too easy to find cases of the proposed text where we'd have to delete vast numbers of images. For example: "Straightforward posed or unposed shots of an identifiable minor in a private place, such as whole-person, face or head and shoulder images" - this apparently needs explicit consent statement from the photographer. For example File:Studying1.jpg would have to go. We know nothing about this photo other than the Flickr page it was taken from. I think Jmh649 got permission (cause the current Flickr image hasn't got an appropriate licence) but what if Jmh649 retires and what if the Flickr account is dead. Colin (talk) 11:45, 21 June 2013 (UTC) I think you've hit the nail on the head there, Colin. What evidence does Commons have that the boy in that entirely innocent photo is happy for his image to be in an open-use image library, free for the world to reuse perpetuity? The Land (talk) 15:22, 23 June 2013 (UTC) I'd suggest section 3 explicitly include any nude or explicitly sexual photograph of any subject. The Land (talk) 08:30, 23 June 2013 (UTC) That's rather extreme. Does File:Colostrum-pregnant-woman.jpg count as nude? Should it be considered extremely high risk, on par with "an identifiable minor in any type of sexual pose"? How about File:Anterior view of human female and male, without labels.jpg? Should that be considered high risk? Powers (talk) 14:08, 23 June 2013 (UTC) Yes. The widespread distribution of an image of this nature without the subject's consent would be an appalling idea. Commons policy needs to protect against the risk of this happening, both to protect people from others maliciously uploading pictures of them, and to protect Commons' own reputation. The Land (talk) 15:10, 23 June 2013 (UTC) I would like to withdraw this proposal to allow more space for open-ended discussions. --MichaelMaggs (talk) 11:19, 24 June 2013 (UTC)

Proposal 4

At present there are quite a lot of images auto-transferred from Flickr where the consent is assumed on the basis that the image was uploaded to Flickr. Flickr, however, is a commercial image gallery, and is not intended explicitly for re-use in the way that Commons is. As a result, it does not educate its users about consents. We should take particular care about the issue of consents where there is any risk that re-use of an image will cause harm or distress to a person. The Land (talk) 10:40, 23 June 2013 (UTC)

See the current guideline text in the "Other image sources" and "Consent" sections. This is covered to a degree already. Please can proposals suggest changes to the current text rather than reheat 2009 FAQ-style additions to some old guideline. -- Colin (talk) 14:45, 23 June 2013 (UTC)

Hi Colin, I have indeed read the guideline. I am also of the view that Commons needs to be much more cautious about assuming the consent of photo subjects, particularly where photos were initially published on Flickr. The Land (talk) 15:12, 23 June 2013 (UTC)

I agree with you, but I really feel the best approach for the Scope 2013 review is for us to have a big discussion, rather than 101 people propose 101 different wording changes/additions. What you've written as a FAQ answer is the sort of thing I think each of us should just write to air our views on the issue. We can then hopefully come to some agreement and then consider what changes are needed. If anything is to be learned from the "appropriately licenced" proposal I just had, it is that offering text and having folk !vote (even if you ask them to discuss) is no way to make constructive progress. I think the way this has been split up into sections is a disaster. Flickr imports is a topic worthy of discussion on its own and touches on several sections in the guideline. Colin (talk) 19:43, 23 June 2013 (UTC)

I'd be quite happy to approach the conversation in a different way! The Land (talk) 12:40, 24 June 2013 (UTC)

So, are we saying the following?

• If it looks like a professional photo in a consent-required situation, it's OK to ask for evidence of consent but assume that it is implied.
• If it looks like an amateur photo in a consent-required situation, ask the uploader if consent was given but be lenient if it looks like implied consent was given.
• If it's a nude photo, definitely remove it unless evidence of consent is supplied.

-- Beland (talk) 20:19, 27 June 2013 (UTC)

This is a topic of considerable community interest/importance. Please see Commons talk:Project scope/Update 2013/Stage 2 to discuss how we should proceed from here. --MichaelMaggs (talk) 18:15, 23 July 2013 (UTC)

Proposal 5

This would add a precautionary principle on the idea of subject consent, modelled on the precautionary principle for copyright already in place. The Land (talk) 11:30, 23 June 2013 (UTC)

There are aspects of this principle that already influence the text. For example, "Commons does not base decisions on whether the subject is able or likely to sue." And "the degree to which an image meets our educational project scope may also be considered. When in doubt, there is no requirement for Commons to host any image of a person." I'm extremely reluctant to phrase any rules in terms of "if x then delete" because it is usually more complex than that.

The "can get away with it" or "they won't find out" issues wrt licenses don't map onto COM:IDENT as nicely as we might first think. For example, images taken in public place don't (in many countries) require consent even if in fact some of the subjects might object if they found out and one might regard this as "getting away with it". On the other hand, in some countries, the law is stricter than common-sense-morals might seem to guide us.

Wrt the wording above, we require consent to host the image. Some re-use situations (like commercial advertising) require futher consent than we require. Colin (talk) 15:05, 23 June 2013 (UTC)

This is a nice, clear answer. It definitely puts a higher bar for uploading photos of individual people, but following the law is pretty important. We are often pretty strict about refusing text that might be a copyright violation. For copyright, we ask for click-through agreement that the uploader gives or has received permission. Privacy and personality consent is more difficult because it comes from someone other than the uploader. Come to think, we don't we add a checkbox for uploaders to say whether or not a pic includes an identifiable person, and whether or not they have express consent for publication? -- Beland (talk) 20:24, 27 June 2013 (UTC)

Those checkboxes would be irrelevant in many jurisdictions if the photo was taken in a public place. So if we are adding checkboxes, a "public place" one should probably come first. Although that is not a black and white issue either - e.g. long lens photos of topless sunbathers at a public beach. --Avenue (talk) 13:40, 10 July 2013 (UTC)

What about in places like Germany that is currently pushing back on people who take photos of individuals in public places (i.e. Google Street View) as invading privacy? Ottava Rima (talk) 15:25, 10 July 2013 (UTC)

I did say many jurisdictions, not all. So maybe the jurisdiction the photo was taken in should be established first, then whether it was taken in a public place (where this is relevant for that jurisdiction). But we also need to accept that checkboxes aren't a complete solution. They're a blunt tool, and can't establish all the relevant facts for every image. For instance, a "public place" checkbox, even with some explanatory text alongside, is not going to always be capable of distinguishing photos that won't be problematic in a certain jurisdiction. There are similar problems with "identifiable" (to whom?) and "consent" (for what? sufficiently informed? etc). These criteria are full of grey areas. --Avenue (talk) 17:05, 10 July 2013 (UTC)

We might need to wait until Germany and the EU makes a final ruling on the matter before we can really determine what to do. Ottava Rima (talk) 17:35, 10 July 2013 (UTC)

This is a topic of considerable community interest/importance. Please see Commons talk:Project scope/Update 2013/Stage 2 to discuss how we should proceed from here. --MichaelMaggs (talk) 18:15, 23 July 2013 (UTC)

Proposal 6

At present a very high weight is given to statements from uploaders that subjects have given consent. This is not appropriate in circumstances where the subject might be disadvantaged by an uploader making such a statement erroneously or mailiciously. The Land (talk) 11:30, 23 June 2013 (UTC)

Further note: This might be a simpler reformulation of Proposal 3 above. The Land (talk) 11:33, 23 June 2013 (UTC)

Well we certainly need a simpler version of proposal 3, which didn't go anywhere four years ago. Very few of our current images contain even a declaration from the uploader, never mind some signed form supplied to OTRS or "evidence". Take medical images, for example. For professional journals, the patient signs a consent form but the image is almost always anonymous and the patient identity not revealed other than to paid professionals with a duty of care wrt privacy. This does not apply to OTRS who are just a bunch of volunteers on the internet. There is absolutely no way we can expect "evidence" of consent for medical images, even though many might fit the above categories. We just have to trust the original publisher and/or uploader in good faith. Also, just because the subject is a minor doesn't mean this is suddently an image in the came category as hard-core sex wrt evidence of consent. I think we need a big discussion on consent and evidence of consent. It should start by collecting ideas rather than proposing text. That would be the last step. This is too complex an issue. Colin (talk) 15:14, 23 June 2013 (UTC)

• So, to host File:Barack_Obama_family_portrait_2011.jpg we need a direct message from the President? --99of9 (talk) 11:41, 24 June 2013 (UTC)

Good point. In this case, a.) the minor's parents clearly consented to have the photo taken, and b.) consent of the parents was clearly given for publication, since this is a publicity photo distributed to the national media. Perhaps the standard shouldn't be "consent must be received directly from the subject" but "consent of the subject must be clearly demonstrated, either expressly or implicitly". For a minor, wouldn't it also be the guardian who must give consent? -- Beland (talk) 20:27, 27 June 2013 (UTC)

This is a topic of considerable community interest/importance. Please see Commons talk:Project scope/Update 2013/Stage 2 to discuss how we should proceed from here. --MichaelMaggs (talk) 18:15, 23 July 2013 (UTC)

Proposal 7

• Our guidelines should recommend (but not require) using the {{Consent}} template for images of identifiable people. It's a step in the right direction at least. Kaldari (talk) 02:45, 8 July 2013 (UTC)

Discussion on principles

A few people have suggested it's unhelpful to discuss proposed text at this stage, and it might be better to talk about broad principles before writing it. I'd broadly agree, so would suggest a principle;

Principle 1

Version 1; We should adopt a precautionary approach to the issue of consent.

Version 2; We should adopt a precautionary approach to the issue of consent where there is risk of the subject suffering any harm or distress as a result of redistribution of their image.

The Land (talk) 12:03, 25 June 2013 (UTC)

I agree cases where there is risk of harm or distress should be dealt with pro-actively. As for whether random casual photos should be pro-actively deleted due to lack of consent, that's certainly an acceptable answer. I'm open to persuasion that there should be some leniency - for example, a time person to attempt to contact the subject. Maybe there are other good reasons to keep an image where consent is required but no evidence has been given (and there has not been a removal request), though I can't think of any. There's also the question of whether editors should be encouraged to check all existing images, or if this rule should only be enforced if there is a specific complained (even if it's not the subject complaining). -- Beland (talk) 20:33, 27 June 2013 (UTC)

• "risk of the subject suffering any ... distress" is a overbroad. There is always a risk of someone claiming to be distressed because he or she does not find the photo complimentary. I've even seen people be that way about their own former publicity shots. - Jmabel ! talk 16:45, 28 June 2013 (UTC)

Principle 2

We need to be clear to uploaders exactly what level of subject consent/evidence is required for any given photograph. 99of9 (talk) 09:19, 28 June 2013 (UTC)

• Yes indeed. The best time for a photographer to obtain consent is around the time the photo is taken, so if they don't know what our requirements are, we risk missing out on useful images for no good reason. It is often practically impossible to obtain consent after the subject has left the scene. --Avenue (talk) 16:43, 10 July 2013 (UTC)

Principle 3

We should not (accidentally?) disallow on Commons vast swathes of (educational) photographs which the subjects have explicitly allowed to be published for a general audience elsewhere 99of9 (talk) 09:23, 28 June 2013 (UTC)

This is a topic of considerable community interest/importance. Please see Commons talk:Project scope/Update 2013/Stage 2 to discuss how we should proceed from here. --MichaelMaggs (talk) 18:15, 23 July 2013 (UTC)