Some readers may recall the debate regarding the selfies taken by a black crested macaque in Indonesia on wildlife photographer David Slater’s camera – who actually owns the copyrights to the image. This incident raised an interesting question around the development of technology and copyright law. The question expands further when it involves human beings who voluntarily exchange images with each other. The human right to dignity and privacy does play a role alongside the copyright laws in South Africa.

It is common practice for people to send selfies as part of their daily interaction with others on social media. A selfie has been described as a spontaneous photograph taken with a smart phone and an outstretched arm. It is a photograph taken of oneself and sometimes with one’s friends. Since it is sent out on social media, the question may be whether it is copyright protected. My understanding is that for a selfie to be protected by copyright, it must be an original work with a minimal degree of creativity. That creativity could involve composing a shot, selecting the lighting and angle, and framing the image. All things considered, a selfie would most likely qualify as a copyright-protected work.

The copyright would usually reside with the person who takes the photograph or, in this case, selfie. If a “work” happens to be posted on Twitter, is it necessary for others to obtain permission to use the selfie? The answer is most likely no since the whole purpose of tweeting is to be retweeted. You do not need permission to retweet an image. However, if you use a copyright-protected image, other than retweeting it, you would in all likelihood need permission from the owner of that copyright.

If we then consider the question of the right to privacy, does the creator of the image have a right to privacy even after having sent the image to a third party? Take for example the situation when a couple become romantically involved. Very often, couples swop and send images of themselves to their partners, particularly in the early stages of that relationship when everything is seen through rose coloured lenses. The pictures can range in composition and are sometimes not the same image that one would expect to see on the mantel piece. The composition configuration has been known to become more adventurous in instances when there happens to be an absence of direct contact between the parties for an extended period of time. This advance in technology is a fantastic way of allowing us to share much more with our significant others over vast distances, in real time, without too much difficulty.

What happens to the images if the couple decide to end the relationship at some stage in the future? Who has the right to the image? After all, it was sent to the other party willingly. Most couples who have separated just delete the images of their previous partner without a second thought.  Perhaps this is to make room for any new romance which could take place shortly after the previous interlude.

However, sometimes, ending a relationship may not be done with mutual consent. One party to the relationship may not have been ready or willing for the relationship to end when it did and will invariably end up being hurt as a result. What’s even worse is that the aggrieved partner could become disgruntled or even downright malicious towards the other person for having ended the relationship? Memories of “Fatal Attraction” spring to mind. They then use the images as a way of inflicting anguish on the other person by posting these images on social media.

Once the images have been released on the web, it may well attract a lot of attention and views from others. There has even been an instance where a person was negatively affected due to the prospective employer having discovered “un-business like” images of the applicant on the web. Although the images of the applicant were posted by their previous partner and not the applicant themselves, the company still felt they could not risk possible reputational damage that could occur at some stage in the future. What should or could the victim do in a case such as this? Do they not have a right to privacy?

An image sent between two individuals in an intermit relationship, seems to suggest that one would need permission from the other in order to publish the image, since it could be argued that they own the copyright of the image they created. Although they may have sent the image, it would also be easy to argue that their intent was to share the image privately with the recipient only and had no intention for the image to be released in the public domain.

We have common law rights both to privacy and to freedom of expression in South Africa. These rights are enshrined in our Constitution and will most certainly be taken into account in addition to any copyright issue. There is always a balance that needs to be sought between these rights.   The Constitutional Court has also established the close link between human dignity and privacy in our law. It is clear that the individual’s whose image has appeared on social media due to someone else other than themselves publishing it without permission, has a clear right to their privacy and the protection of their reputation.

Ultimately, the question of copyright, privacy, dignity and freedom of expression will depend on the specific circumstances in each situation, but those individuals who make postings of others on the social media would be well advised to refrain from doing so or remove such postings immediately after having been requested to do so by the offended party. If not, they should remember that the court will take into account the context in which the publication occurs. Unwarranted defamatory information or images about someone will almost certainly be viewed in a dim light by our courts. After all, the social media is about building friendships around the world, rather than offending fellow human beings.

There can be little doubt that selfies remain the property of the person whose image appears in the selfie.

For further reading on the subject see:

• “Privacy in a Facebook Era: A South African Legal Perspective” by Anneliese Roos, Professor of Private Law in the University of South Africa,
• “Saving Facebook” by James Grimmelmann, Associate Professor of Law in the New York Law School,
• “ So who does own the monkey selfie?” by Stuart N. Brotman, non-resident senior fellow in the Centre for Technology Innovation within Governance Studies at Brookings

By Ken van Sweeden
Director of Liability Matters (Pty) Ltd