Can you take photos of passers-by in "Store Visiting Video"? Some people have filed lawsuits because of similar situations.
According to media reports, Xiaoli, a citizen of Wuhan, Hubei, was having a meal at a restaurant when she was being filmed by someone who was trying to make a video. Xiaoli made it clear not to film herself, but later found that her video appeared on a short video platform. She quickly contacted the short video platform and asked to take the video offline, but was refused. In February 2024, Xiaoli took the short video platform to court and asked it to delete the video, apologize and compensate for mental losses. After court mediation, the short video platform compensated Xiaoli 10,000 yuan.
The reporter searched the judgment documents published by courts in various places and found that without his consent, he was "forced" or accidentally appeared in the video when others took the video, and the dissemination on the short video platform triggered many legal proceedings. Most of the court's rulings were: filming and uploading If the short video involved fails to be deleted in time, the platform will also be jointly and severally liable.
In this regard, Zhu Wei, an associate professor at China University of Political Science and Law, said that every citizen and natural person has the right to portrait. If you can secretly photograph without permission or obtain relevant image records through illegal means, and then publish them to short video platforms, regardless of For whatever purpose, regardless of whether the video itself is profitable or not, this constitutes an infringement of the legitimate rights of the rights holder.
Case: "Store Visiting Video" was filmed, sued and won compensation
In October 2022, Wuhan citizen Xiaoli went to a restaurant to eat. At that time, someone was holding a camera in the restaurant while introducing the food and filming a check-in promotional video. Seeing that the camera was turned towards her, Xiaoli quickly covered her face and made it clear not to film herself. The videographer immediately moved away from the camera and continued to film other scenes in the restaurant.
A few months later, Xiaoli’s friend told her, “I saw your dining video on the short video platform, and it had a lot of views.” Xiaoli quickly checked online and found that she appeared in the video for several seconds. It also showed its full face and received nearly a thousand views, and the video continues to be played online.
Xiaoli was very troubled: "I clearly refused to shoot at that time, so why did it still appear in the video!" She quickly contacted the short video platform and asked to take the video offline, but was rejected.
In February 2024, Xiaoli took the short video platform to court and asked it to delete the video, apologize and compensate for mental losses.
After hearing, the Hanyang District People's Court held that in this case, Xiaoli's portrait appeared in the store visit video released by the short video platform, but the video did not fall into the category of situations where the consent of the portrait rights holder is not required by law. Xiaoli had made it clear that she did not agree to be photographed when she was being filmed, and the short video platform's still public release of the video infringed on Xiaoli's right to portrait. The video was clicked, collected, and forwarded by unspecified people, causing Xiaoli to suffer a certain degree of mental damage. In view of the fact that the number of clicks and reposts of the video did not reach a large scale, and during the litigation process, the short video platform deleted the relevant video and stopped the infringement. Recently, after court mediation, the platform compensated Xiaoli 10,000 yuan.
Lawyer: Unintentional filming, uploading, and disclosure may constitute an infringement of portrait rights.
According to Article 1019, Paragraph 1, of the Civil Code of the People's Republic of China: No organization or individual may vilify, deface, or Use information technology means to forge and infringe on the portrait rights of others. Without the consent of the portrait right holder, the portrait of the portrait right holder shall not be produced, used, or disclosed, unless otherwise provided by law.
In addition, according to Article 1020 of the Civil Code of the People's Republic of China, under the following specific circumstances, the perpetrator can also use his or her portrait without the consent of the portrait owner: (1) For personal study and art appreciation. , classroom teaching or scientific research, use the public portrait of the portrait owner within the necessary scope; (2) For the purpose of news reporting, it is inevitable Produce, use, and disclose portraits of portrait rights holders; (3) In order to perform their duties in accordance with the law, state agencies produce, use, and disclose portraits of portrait rights holders within the necessary scope; (4) In order to display specific public environments, unavoidable production, Using and disclosing the portrait of the portrait right holder; (5) Other acts of producing, using, and disclosing the portrait of the portrait right holder in order to safeguard public interests or the legitimate rights and interests of the portrait right holder. In other words, in addition to complying with the "fair use" category stipulated in the above-mentioned laws, the use of other people's portraits may constitute an infringement of other people's portrait rights.
A judgment document issued by the Gangbei District People's Court of Guigang City on the infringement of portrait rights
The assistant judge of a local Internet court stated that the above situations are generally not involved in such bloggers' store-exploring videos or other commercial live broadcasts and shootings. Some people may say that they didn’t see clearly who they were photographing when taking the photo, so they accidentally photographed it. During the trial of the case, the standard for identifying portrait rights is recognizability. That is to say, as long as others can identify the person being photographed through his facial features and posture, the standard for portrait rights infringement has been met.
Pang Lipeng, director of Beijing Dingshi Law Firm, also said that whether it is a "store visit video" or other video shooting and dissemination, if the identifiable likeness of others is displayed without their consent, it does not fall under Article 1 of the Civil Code of the People's Republic of China. The fair use situations listed in Article 1,020 may constitute an infringement of the portrait rights of others even if they are not intentionally photographed, uploaded, or made public.
Pang Lipeng said that in life, many people have misunderstandings about portrait rights. For example, some people believe that only celebrities have portrait rights, but ordinary people do not. In fact, the right of portrait is a unique right of natural persons and has nothing to do with status. Therefore, both celebrities and ordinary people should pay attention to protecting their image rights.
Pang Lipeng said that first of all, once infringement is constituted, the video shooter must immediately stop the infringement behavior, that is, delete the infringing content to avoid further damage. Secondly, the portrait right owner has the right to demand an apology from the infringer, and the specific method needs to be determined based on the circumstances of the infringement and the extent of the damage. If the infringement causes damage to reputation or derogation of social status, the infringer also needs to bear the responsibility to restore the reputation and eliminate the negative impact. In addition, if the infringement causes the portrait right holder to suffer mental damage or material losses, the infringer must compensate for the corresponding losses in accordance with the law. The amount of compensation will be comprehensively determined based on factors such as the seriousness of the infringement, the degree of fault of the infringer, and subsequent remedial measures.
Judge: Pay attention to the principle of "fair use" and protect the portrait rights of others in accordance with the law.
How can video photographers avoid the risk of infringement? In Pang Lipeng's view, whether it is shooting in a store or shooting on the street, the lens collection of passers-by should be properly handled. Photographers must strictly abide by relevant laws and regulations and the relevant regulations of the places visited, and try to avoid making irrelevant others the subject of the picture. If it is difficult to prevent other people from being in the shot during the shooting, blurring or blocking should be used in the post-production stage to protect their portrait rights.
Pang Lipeng said that when you really need to shoot scenes involving other people, you must obtain the consent of the other party in advance, clearly explain the purpose of use and disclosure scope of the content, and keep the proof of this consent properly to ensure that you will not be exposed to any possible infringement. When there is a dispute over portrait rights, we can quickly provide effective evidence and resolve the dispute in a timely manner.
For short video platforms, Pang Lipeng believes that the infringement risk of store-visiting videos is difficult to completely avoid through a simple pre-review mechanism due to its concealment and diversity.As an information storage space and network service provider, the core function of the platform is to provide users with convenient uploading and sharing channels, rather than becoming a content producer or reviewer. If excessive prior review responsibilities are imposed on the platform, it may not only lead to inefficient platform operations, but may also trigger new controversies due to excessive intervention in content creation.
He said that when the infringed person discovers that there is infringement in the store-visiting video on the platform, he can submit a notice containing clear evidence of infringement to the platform and request the platform to delete the relevant content. After receiving a valid notice, the platform should take timely measures to delete or block infringing content to avoid the continued expansion of infringement. If the platform fails to perform its deletion obligations in a timely manner after receiving the notice, the infringed person has the right to pursue the platform's corresponding responsibilities.
In addition, in the era of national live broadcasts, when conducting activities such as filming or live broadcasting, you should respect the portrait rights of others and avoid infringing on the legitimate rights and interests of others. At the same time, when your portrait rights are infringed, you should have the courage to take up legal weapons to protect your legitimate rights and interests.
A judge from the People's Court of Shapingba District, Chongqing reminded the public that in the era of self-media, everyone has a "microphone" and everyone is a communicator. The judge hereby reminds creators that when taking photos and videos and publishing them on online platforms, they must follow the principle of "fair use" and protect the portrait rights of others in accordance with the law.
Can you take photos of passers-by in "Store Visiting Video"? Some people have filed lawsuits because of similar situations.
According to media reports, Xiaoli, a citizen of Wuhan, Hubei, was having a meal at a restaurant when she was being filmed by someone who was trying to make a video. Xiaoli made it clear not to film herself, but later found that her video appeared on a short video platform. She quickly contacted the short video platform and asked to take the video offline, but was refused. In February 2024, Xiaoli took the short video platform to court and asked it to delete the video, apologize and compensate for mental losses. After court mediation, the short video platform compensated Xiaoli 10,000 yuan.
The reporter searched the judgment documents published by courts in various places and found that without his consent, he was "forced" or accidentally appeared in the video when others took the video, and the dissemination on the short video platform triggered many legal proceedings. Most of the court's rulings were: filming and uploading If the short video involved fails to be deleted in time, the platform will also be jointly and severally liable.
In this regard, Zhu Wei, an associate professor at China University of Political Science and Law, said that every citizen and natural person has the right to portrait. If you can secretly photograph without permission or obtain relevant image records through illegal means, and then publish them to short video platforms, regardless of For whatever purpose, regardless of whether the video itself is profitable or not, this constitutes an infringement of the legitimate rights of the rights holder.
Case: "Store Visiting Video" was filmed, sued and won compensation
In October 2022, Wuhan citizen Xiaoli went to a restaurant to eat. At that time, someone was holding a camera in the restaurant while introducing the food and filming a check-in promotional video. Seeing that the camera was turned towards her, Xiaoli quickly covered her face and made it clear not to film herself. The videographer immediately moved away from the camera and continued to film other scenes in the restaurant.
A few months later, Xiaoli’s friend told her, “I saw your dining video on the short video platform, and it had a lot of views.” Xiaoli quickly checked online and found that she appeared in the video for several seconds. It also showed its full face and received nearly a thousand views, and the video continues to be played online.
Xiaoli was very troubled: "I clearly refused to shoot at that time, so why did it still appear in the video!" She quickly contacted the short video platform and asked to take the video offline, but was rejected.
In February 2024, Xiaoli took the short video platform to court and asked it to delete the video, apologize and compensate for mental losses.
After hearing, the Hanyang District People's Court held that in this case, Xiaoli's portrait appeared in the store visit video released by the short video platform, but the video did not fall into the category of situations where the consent of the portrait rights holder is not required by law. Xiaoli had made it clear that she did not agree to be photographed when she was being filmed, and the short video platform's still public release of the video infringed on Xiaoli's right to portrait. The video was clicked, collected, and forwarded by unspecified people, causing Xiaoli to suffer a certain degree of mental damage. In view of the fact that the number of clicks and reposts of the video did not reach a large scale, and during the litigation process, the short video platform deleted the relevant video and stopped the infringement. Recently, after court mediation, the platform compensated Xiaoli 10,000 yuan.
Lawyer: Unintentional filming, uploading, and disclosure may constitute an infringement of portrait rights.
According to Article 1019, Paragraph 1, of the Civil Code of the People's Republic of China: No organization or individual may vilify, deface, or Use information technology means to forge and infringe on the portrait rights of others. Without the consent of the portrait right holder, the portrait of the portrait right holder shall not be produced, used, or disclosed, unless otherwise provided by law.
In addition, according to Article 1020 of the Civil Code of the People's Republic of China, under the following specific circumstances, the perpetrator can also use his or her portrait without the consent of the portrait owner: (1) For personal study and art appreciation. , classroom teaching or scientific research, use the public portrait of the portrait owner within the necessary scope; (2) For the purpose of news reporting, it is inevitable Produce, use, and disclose portraits of portrait rights holders; (3) In order to perform their duties in accordance with the law, state agencies produce, use, and disclose portraits of portrait rights holders within the necessary scope; (4) In order to display specific public environments, unavoidable production, Using and disclosing the portrait of the portrait right holder; (5) Other acts of producing, using, and disclosing the portrait of the portrait right holder in order to safeguard public interests or the legitimate rights and interests of the portrait right holder. In other words, in addition to complying with the "fair use" category stipulated in the above-mentioned laws, the use of other people's portraits may constitute an infringement of other people's portrait rights.
A judgment document issued by the Gangbei District People's Court of Guigang City on the infringement of portrait rights
The assistant judge of a local Internet court stated that the above situations are generally not involved in such bloggers' store-exploring videos or other commercial live broadcasts and shootings. Some people may say that they didn’t see clearly who they were photographing when taking the photo, so they accidentally photographed it. During the trial of the case, the standard for identifying portrait rights is recognizability. That is to say, as long as others can identify the person being photographed through his facial features and posture, the standard for portrait rights infringement has been met.
Pang Lipeng, director of Beijing Dingshi Law Firm, also said that whether it is a "store visit video" or other video shooting and dissemination, if the identifiable likeness of others is displayed without their consent, it does not fall under Article 1 of the Civil Code of the People's Republic of China. The fair use situations listed in Article 1,020 may constitute an infringement of the portrait rights of others even if they are not intentionally photographed, uploaded, or made public.
Pang Lipeng said that in life, many people have misunderstandings about portrait rights. For example, some people believe that only celebrities have portrait rights, but ordinary people do not. In fact, the right of portrait is a unique right of natural persons and has nothing to do with status. Therefore, both celebrities and ordinary people should pay attention to protecting their image rights.
Pang Lipeng said that first of all, once infringement is constituted, the video shooter must immediately stop the infringement behavior, that is, delete the infringing content to avoid further damage. Secondly, the portrait right owner has the right to demand an apology from the infringer, and the specific method needs to be determined based on the circumstances of the infringement and the extent of the damage. If the infringement causes damage to reputation or derogation of social status, the infringer also needs to bear the responsibility to restore the reputation and eliminate the negative impact. In addition, if the infringement causes the portrait right holder to suffer mental damage or material losses, the infringer must compensate for the corresponding losses in accordance with the law. The amount of compensation will be comprehensively determined based on factors such as the seriousness of the infringement, the degree of fault of the infringer, and subsequent remedial measures.
Judge: Pay attention to the principle of "fair use" and protect the portrait rights of others in accordance with the law.
How can video photographers avoid the risk of infringement? In Pang Lipeng's view, whether it is shooting in a store or shooting on the street, the lens collection of passers-by should be properly handled. Photographers must strictly abide by relevant laws and regulations and the relevant regulations of the places visited, and try to avoid making irrelevant others the subject of the picture. If it is difficult to prevent other people from being in the shot during the shooting, blurring or blocking should be used in the post-production stage to protect their portrait rights.
Pang Lipeng said that when you really need to shoot scenes involving other people, you must obtain the consent of the other party in advance, clearly explain the purpose of use and disclosure scope of the content, and keep the proof of this consent properly to ensure that you will not be exposed to any possible infringement. When there is a dispute over portrait rights, we can quickly provide effective evidence and resolve the dispute in a timely manner.
For short video platforms, Pang Lipeng believes that the infringement risk of store-visiting videos is difficult to completely avoid through a simple pre-review mechanism due to its concealment and diversity.As an information storage space and network service provider, the core function of the platform is to provide users with convenient uploading and sharing channels, rather than becoming a content producer or reviewer. If excessive prior review responsibilities are imposed on the platform, it may not only lead to inefficient platform operations, but may also trigger new controversies due to excessive intervention in content creation.
He said that when the infringed person discovers that there is infringement in the store-visiting video on the platform, he can submit a notice containing clear evidence of infringement to the platform and request the platform to delete the relevant content. After receiving a valid notice, the platform should take timely measures to delete or block infringing content to avoid the continued expansion of infringement. If the platform fails to perform its deletion obligations in a timely manner after receiving the notice, the infringed person has the right to pursue the platform's corresponding responsibilities.
In addition, in the era of national live broadcasts, when conducting activities such as filming or live broadcasting, you should respect the portrait rights of others and avoid infringing on the legitimate rights and interests of others. At the same time, when your portrait rights are infringed, you should have the courage to take up legal weapons to protect your legitimate rights and interests.
A judge from the People's Court of Shapingba District, Chongqing reminded the public that in the era of self-media, everyone has a "microphone" and everyone is a communicator. The judge hereby reminds creators that when taking photos and videos and publishing them on online platforms, they must follow the principle of "fair use" and protect the portrait rights of others in accordance with the law.
Source: cctv client
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