1. What is the image of a natural person and how is it protected?
The concept of a person's image is not specifically defined within Polish law. As a result, one must rely on dictionary definitions and those established through legal doctrine and case law. According to these sources, an image can be understood as "someone's likeness on a drawing, painting, photograph, etc.," or as "the way a person or thing is perceived and portrayed." Therefore, an image encompasses two aspects: a tangible, physical likeness and an intangible personal right. For instance, the Polish Supreme Court has noted that "although there is no uniform understanding of the concept of image in legal doctrine, the prevailing view emphasises visible, physical characteristics of a person that create their appearance and allow for identification among others as a physical representation, portrait or recognisable likeness." These features are distinct enough to identify a specific individual. It is important to distinguish this understanding of an image from its medium, which might be a photograph, sculpture, drawing or painting. An image can be captured on paper, CD or in other forms. For the protection of an image, the method by which it is captured is irrelevant if it can be used to make this intangible object available to the public.
Any production or use (e.g., distribution, making available, etc.) of a person's image, for example in advertising, press relations, HR contexts and even internal use within a company, is subject to potential legal restrictions, which should be considered by businesses also from a compliance perspective.
An image is a personal right and is primarily protected by the provisions of the Polish Civil Code. The image and its protection are also subject to regulation under the Polish Copyright Act. The Polish Civil Code lists the image among personal rights, while detailed regulations are found in the Polish Copyright Act. There is a consensus that the Polish Civil Code allows for the overlap of legal norms with those found in the Polish Copyright Act. This enables an interested party to choose between cumulative or alternative legal protections. However, this relationship does not change the fact that, although protection can be sought under copyright law when an image is infringed, not all images fall under copyright per se. Only those images that meet the criteria of a work are subject to copyright. If an image does not simultaneously constitute a work, it is protected under regulations specific to images.
Moreover, the Press/Media Law also provides for the protection of images, stating that information and data concerning an individual's private life cannot be published without the consent of the person concerned, unless it is directly related to the individual's public activity.
As an image is also considered personal data, meaning it is information about an identified or identifiable natural person, its processing (such as capturing, publishing, storing, etc.) is subject to the GDPR. Essentially, this means that a legal basis is required for any operations involving a person's image, and the processor is bound by a number of information and data security obligations.
It should also be noted that the Polish Penal Code classifies certain actions related to a person's image as criminal offenses (e.g., persistent harassment or involvement with certain pornographic content).
2. How can one legally use another person's image?
While in certain cases exceptions may apply (in particular for public figures or if the depicted person is just a detail in a larger scene), the distribution of an image usually requires the consent of the individual depicted. The law does not specify any details regarding this consent, such as the form of the declaration of intent or the duration of the consent's validity. However, practice indicates that it is advisable to document the consent (e.g., via appearance release forms or agreements). It should also be noted that the lack of objection to being photographed or recorded usually is not equivalent to granting permission for the distribution or other use of the image; it may only imply consent to its capture. A given consent may even be revoked, especially if the manner of using the image infringes upon the personal rights of the individual whose image was captured, which the person did not anticipate when giving consent.
3. Specific issues
The same laws protecting the right to an image in all other situations apply on the internet. There are no specific regulations governing these issues in an online environment. This results in practical problems for which the law does not always provide clear solutions, such as the legal status of images posted on social media platforms.
It is also worth noting that, while the Polish Copyright Act explicitly allows only three cases of permissible distribution of a person's image (consent, public recognition or as a detail of a whole), other – unwritten – exceptions may apply (e.g., in case of an image of a missing person or someone wanted by a warrant).
In practice, issues often arise with regard to the use of an employee's image. This situation is, in general, no different from that of any other person; thus, in principle, consent is primarily required. Furthermore, it is widely accepted that "the employer is obliged to accept the employee's objection if the employee does not want their image to be used. The employer must not act otherwise, even if it is deemed that the refusal is irrational and contrary to the company's interests."
In Poland, it is also important to highlight two specific legal acts: The first concerns the protection of the heritage of Fryderyk Chopin. It introduces protection of Fryderyk Chopin's image in accordance with the principles applicable to personal rights. Chopin's image is protected indefinitely. The Minister of Culture and National Heritage supervises Chopin's image and has the right to seek protection in the event of a threat or infringement of Fryderyk Chopin's image rights. The second legal act is the Polish Sports Act, which regulates the issue of an athlete's likeness in the attire of the national team or Olympic representation. Before qualifying for the team or representation, an athlete must give consent for the exploitation of their image in the national team's attire. The Polish sports association or the Polish Olympic Committee has the exclusive right to economically exploit the image captured in this context.
4. What are the possible sanctions?
A person whose image has been unlawfully distributed is entitled to several claims, such as demanding the cessation of the distribution of their image and taking actions necessary to remove the effects of the distribution, particularly by issuing a public statement with appropriate content and form.
The Polish Civil Code provides additional rights. If the infringement of personal rights has caused material damage, the injured party may seek compensation under general principles. In such cases, the Polish Civil Code allows for the pursuit of compensation for material damage suffered by the person whose image was unlawfully and culpably distributed by the infringer.
Therefore, businesses should implement proper measures to avoid (even unintentional) infringements of a person's image, for example by including respective warranty provisions in advertising and PR agency contracts (as such may be commissioned to create respective model footage) and by concluding proper appearance releases with employees or other third parties whose images may be used either internally or externally.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.