નેધરલેન્ડ્સમાં જ પોટ્રેટ: તમારી છબી ક્યારે પ્રકાશિત થઈ શકે છે?

Portrait right (portretrecht) is the right of a recognisable person to oppose publication of an image of themselves, laid down in Articles 19 to 21 of the Dutch Copyright Act (Auteurswet). For a portrait made on that person’s commission publication requires their consent; for any other portrait publication is only unlawful if a reasonable interest of the person portrayed opposes it (Article 21 Auteurswet).

So in most cases Dutch law does not require consent for every publication; the publisher must weigh the person’s interest against freedom of expression. This article explains when portrait right applies, how the balancing works, the special rules for children, groups and deceased persons, and how to enforce your right.

What does portrait right protect?

A portrait is any depiction of a person in which that person is recognisable: a photograph, film, drawing, painting or computer-generated image. Recognisability is decisive; a distinctive tattoo, hairstyle or setting can be enough even when the face is hidden.

Portrait right only concerns publication, not the taking of the picture. Photographing in a public place is in principle lawful; what matters is posting, printing, broadcasting or using the image in a campaign. A social media post visible to hundreds of contacts is normally treated as public.

How does portrait right relate to copyright and privacy law?

Three rights are often confused. Copyright belongs to the maker and lasts until 70 years after the maker’s death (Article 37 Auteurswet). Portrait right belongs to the person depicted. In parallel, a photo of an identifiable person is personal data under the General Data Protection Regulation (GDPR, in Dutch AVG). Our page on પ્રકાશન અને ચિત્ર અધિકારો explains the interaction in more detail.

Was the portrait made on commission?

That question decides which rule applies. A portrait made on commission of the person portrayed, or on their behalf, may not be published by the copyright holder without their consent, and after their death without consent of their relatives for ten years (Article 20 Auteurswet).

A wedding photographer who wants to use the pictures in a portfolio, or a studio that wants to use a company headshot in its advertising, therefore needs permission. Street photography, press photography and pictures taken at an event are not commissioned by the people shown and fall under Article 21. A company photographer at a staff event is not working on the commission of each employee, so those images also fall under Article 21.

How does the reasonable interest test work?

Under Article 21 Auteurswet the court weighs the interest of the person portrayed against freedom of expression, protected by Article 10 of the European Convention on Human Rights (ECHR) and Article 7 of the Dutch Constitution. Neither right takes precedence in the abstract; everything depends on the circumstances of the publication.

The first recognised interest is privacy under Article 8 ECHR. It weighs heavily where the image shows someone in a private, medical or judicial context, or in a way that harms their reputation or safety. The context matters: the same photo can be lawful in a news report and unlawful under a headline suggesting wrongdoing. For public office holders in a matter of public debate the balance shifts towards publication.

The second is a commercial interest. Dutch case law recognises that a person whose popularity can be exploited commercially has a reasonable interest in sharing in the proceeds. Using someone’s image in advertising, on merchandise or in a sponsored post without permission therefore almost always fails the test; damages are usually based on the licence fee that would reasonably have been charged.

A house rule, a sign at an event entrance or a clause in general terms does not take away the statutory right. It can be evidence of consent, but it does not replace the balancing test.

How do you record consent and comply with the GDPR?

Record consent in a model release stating who is portrayed, which images, for which purposes and media, for which territory and period, whether a fee is paid, and whether the images may be edited or passed on. Consent for one campaign does not cover the next, and editorial consent does not cover advertising.

Under the GDPR publishing a recognisable photograph needs a lawful basis under Article 6 GDPR. Consent must be free and can be withdrawn, which makes it unreliable between employer and employee; a documented legitimate interest is often a sounder basis for corporate communications. Processing for exclusively journalistic purposes is largely exempt under Article 43 of the Dutch GDPR Implementation Act (UAVG). Our ગોપનીયતા વકીલો advise on both questions.

What applies to children, groups and deceased persons?

Under Article 5 UAVG, where GDPR consent is the basis and the child is under 16, consent must come from the parents or legal guardian. In the balancing test the interest of a child weighs heavily: identifiable children in a school, sports or medical setting, and children in advertising without parental consent, are treated with particular caution.

Being one face in a crowd does not remove the right, but it changes the balance. In a genuine overview shot of a public event a reasonable interest will rarely be established; it is different when one person is cropped out, put in the foreground or used to illustrate a story about them.

After death, relatives can invoke portrait right. Article 25a Auteurswet defines them as the parents, the spouse or registered partner and the children, each of whom may act independently. For commissioned portraits their consent is required for ten years after the death (Article 20 Auteurswet).

What about deepfakes and sexual images?

A manipulated or AI-generated image is still a portrait if the person is recognisable. Because it is never made on commission, Article 21 applies, and the person’s interest will almost always prevail over publication of an image suggesting they said or did something they did not. The EU AI Act also requires those who publish deepfakes to disclose that the content is artificially generated or manipulated.

Sexual images are also a criminal matter. Since 1 July 2024 Article 254ba of the Dutch Criminal Code (Wetboek van Strafrecht) makes it an offence to make a visual depiction of a sexual nature of someone unlawfully, and to publish such an image knowing that publication can harm that person, with up to two years’ imprisonment for publication. That provision replaced the former Article 139h, which was repealed on the same date. A police report and a civil claim can run side by side.

How do you enforce your portrait right?

First secure the evidence: save the page, the image file, the web address and the date. Where the scale matters for damages, a bailiff (gerechtsdeurwaarder) can draw up an official record of what was online at a given moment.

Then send a written demand to the publisher identifying the image, stating the infringement, requiring removal within a short, specific period and reserving your right to damages. If the image is on a platform, use the notice mechanism the platform must offer under the EU Digital Services Act; a host that does not act promptly after notice can lose its exemption from liability.

If that fails, summary proceedings (kort geding) can lead to an order to remove the image and refrain from publishing it, usually backed by a penalty payment (dwangsom). Damages, based on Article 6:162 of the Dutch Civil Code (BW), are claimed in proceedings on the merits and may include the licence fee and non-material loss. The claim becomes time-barred five years after you knew of the damage and the liable person (Article 3:310 BW).

For cross-border publications, the EU Rome II Regulation excludes violations of privacy and personality rights, so the applicable law follows Dutch private international law. Jurisdiction within the EU follows the Brussels I bis Regulation.

જે વ્યક્તિનું ચિત્રણ કરવામાં આવ્યું છે તે મુજબ તમારે શું તપાસવું જોઈએ?

• Whether you are recognisable in the image, by face or by other features.
• Whether the portrait was made on your commission (Article 20) or not (Article 21 Auteurswet).
• Whether the use is commercial, which strengthens your position.
• Whether you have secured screenshots, the web address and the date.
• Whether a platform notice under the Digital Services Act is the fastest route.

What should you check as a publisher?

• Whether each person in the image is recognisable and whether the portrait was commissioned.
• Whether the use is editorial, informative or commercial; commercial use needs permission in practice.
• Whether a signed model release covers this purpose, medium and period.
• Whether stock image licences exclude advertising or sensitive contexts.
• Whether you have a GDPR basis for staff photos and a policy for when employees leave.

What can we do for you with portrait right?

Our lawyers assist ખાનગી ગ્રાહકો and businesses; see also our આઇટી વકીલ પાનું:

• We assess whether a publication infringes your portrait right under Article 20 or 21 Auteurswet.
• We draft the demand letter and the platform notice.
• We start summary proceedings for removal, backed by a penalty payment.
• We calculate and claim damages, including a reasonable licence fee.
• We draft model releases and image policies for organisations.

સારાંશ

• Portrait right protects recognisable persons against publication, not against the taking of the image.
• Commissioned portraits need consent (Article 20 Auteurswet); other portraits are subject to a reasonable interest test (Article 21).
• Commercial use without permission almost always infringes; damages are usually based on a licence fee.
• Sexual images published without consent are a criminal offence under Article 254ba Sr since 1 July 2024.
• Enforcement runs through a demand letter, platform notice and, if needed, summary proceedings.

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