Your photographs may be misused already: is it still safe to post them?

The incident

Sina News recently carried a report: "Ms Liu, from Shenzhen, has had a thoroughly unpleasant experience. Private photographs of herself and a close friend were forwarded to WeChat Moments with vulgar captions, and she found herself, for no reason at all, the face of a low-grade marketing campaign for a car dealership."

The report included a video from the Kankan News app in which Ms Liu said: "People who know me may think I have been hacked, but people who do not know me come and mock me, and people who do not know me at all make vulgar jokes about it." A Kankan News reporter found the dealership named in the captions, and its person in charge said that the three people in the photographs were not employees of the company and that checks had shown that no employee had posted them. The dealership had been left explaining the matter to other customers, and its customer service line had received a large number of nuisance calls. After the incident Ms Liu and the person in charge of the dealership went together to report it at the Nanshan High-Tech Park police station. The case is under investigation.

Legal analysis

The legal basis for infringement of the right to portrait:

1. Article 100 of the General Principles of the Civil Law of the People's Republic of China, on the right to portrait: a citizen enjoys the right to portrait, and his portrait may not be used for profit-making purposes without his consent.

The elements of infringement of the right to portrait are the making or use of another person's portrait without permission and without any ground that negates wrongfulness. The holder of the right may forbid others to damage, defile or vilify his portrait maliciously and unlawfully; where another person infringes it, he may require that person to stop the infringement, may take the measures necessary to prevent the infringement from occurring and the loss from growing, and may require the tortfeasor to bear the corresponding civil liability and to compensate the loss the infringement has caused him.

2. Article 139 of the Opinions of the Supreme People's Court on Several Issues concerning the Implementation of the General Principles of the Civil Law provides that using a citizen's portrait without his consent for advertising, trade marks, shop-window display or the like for profit-making purposes shall be found to be an infringement of his right to portrait.

The legal basis for infringement of the rights to reputation and privacy:

1. Article 101 of the General Principles of the Civil Law, on the right to reputation: citizens and legal persons enjoy the right to reputation; the personal dignity of citizens is protected by law; and the reputation of citizens and legal persons may not be harmed by insult, defamation or other means.

2. Article 120 of the General Principles of the Civil Law, on civil liability for infringement of the rights of personality: where a citizen's right to name, portrait, reputation or honour is infringed, he has the right to require that the infringement stop, that his reputation be restored, that the effects be eliminated and that an apology be made, and may claim compensation for the loss.

3. Article 38 of the Constitution provides: "The personal dignity of citizens of the People's Republic of China is inviolable. Insult, defamation and false accusation of citizens by any means are prohibited."

On that legal basis, Ms Liu's private photographs were taken and used without her knowledge or authorisation, and her rights to portrait and to privacy were infringed. The photographs were used in vulgar marketing, damaging her reputation and her image, and her right to reputation was therefore also infringed. She has the right to require that the infringement stop, that her reputation be restored, that the effects be eliminated and that an apology be made, and may claim compensation for the loss.

What the case shows

With the growth of the internet and the spread of smartphones, more and more people like to share their daily lives and their good photographs on social platforms. A search of Weibo for "photographs misused" will show how many internet users have had their photographs taken and used by others: a girl in her final year at a Chengdu high school whose photographs were used to register an account on Momo; a married woman surnamed Sun in Guilin whose selfies were used in a marriage advertisement; a woman student at a Guangxi college whose photographs from WeChat Moments were used by a swindler to post obscene material. The examples are beyond counting, and a search on Taobao for "beautiful women's daily Moments" will even turn up shops selling such photographs. Where those shops obtain them, there is no way of knowing.

Anyone who posts photographs of daily life on WeChat Moments or another social platform runs the risk of their being taken and used at any moment. The difficulty is that misuse is hard to prevent, hard to detect and harder still to remedy.

An environment in which personal photographs are easily taken and leaked has produced a grey market in the sale of private pictures. Some offenders specialise in taking other people's photographs and, using voice-changing software and other techniques, commit online fraud in the name of making friends.

In recent years China has given some weight to protecting personal information and to combating intrusions on privacy, and the rules have been steadily improved. Social platforms have also set up channels for users to complain of intrusions on privacy. Yet the resale and misuse of photographs continues. The answer is to guard against it at the source: to strengthen awareness of personal information security, to keep strangers out of one's WeChat Moments, and as far as possible not to post intimate photographs and information on social platforms, which reduces the risk of pictures being taken and effectively protects one's own information.