The Hidden value of Personal Image

By Keith Laker

Every now and then an article comes along that neatly illustrates what one has long suspected. Such is the case with an article by Douglas Macmillan and Elizabeth Dwoskin that appeared in the Wall Street Journal earlier this month. It’s a very nice demonstration of just how intensively our personal data is being mined and our images appropriated for commercial gain without our knowledge. Data mining is nothing new, but image recognition software is increasingly able to scan online personal photographs for items as specific as brand logos, fashion accessories, devices and even emotions conveyed on the faces of those photographed. The sheer scale is awesome: for example Instagram reportedly has more than 20 billion images shared with 60 million being added daily. People consistently fail to comprehend the value of their data. Firms such as Datacoup already offer to pay subscribers for access to personal data. Ex Microsoft guru Jaron Lanier has written extensively on the subject of how and why people should be paid when their personal data is used by others. It’s probably fair to assume that for some, simply being paid for their personal data is sufficient reason to quiesce. However, for many, remuneration is not the issue – it’s more a matter of principle. Macmillan and Dwoskin make the point that in many cases the EULA’s fail to keep up with the pace of technological change, with the effect that even if people do read the fine print (and how likely is that?) they won’t necessarily be fully advised of the extent to which their images are being commercially exploited. So – how can someone control the use by others of the visual images in which they appear? Options include:

  • Don’t post images online at all
  • Don’t sign up to EULA’s that require you to relinquish all rights to your image
  • Do take active steps to protect the use of your image.

The first two are barely options at all for anyone that wants to have an online social presence. The last option would best be served by creating a registered personality using the Guernsey Image Rights Ordinance, which provides effective control over who gets to use any aspect of one’s personality. With a registration cost of £1,000 it’s not exactly an impulse purchase – but there are ways to mitigate that.   More importantly, registering demonstrates that an individual cares about the way in which their image is used.   Inevitably this will lead to a tension between the registered image rights on one hand and the unfettered use by others under the terms of a EULA on the other hand.   The question is, if considered by a court, which would carry more weight: a conscious decision to protect one’s image at a not insignificant financial cost, or a click-wrap EULA with no other option if one wants to access a social network site?   Anyone for a class action?

This note is only intended to give a brief summary and general overview of this area of law. It is not intended to be, nor does it constitute, legal or tax advice and should not be relied upon as doing so. 

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