Introduction
Someone takes a photograph of another person and uploads it on Instagram. The person in the photograph objects and asks for it to be removed. The immediate question is whether posting someone’s photograph without permission is illegal in India.
There is no blanket rule that makes every photograph posted without consent automatically illegal. At the same time, being photographed in a public place does not give another person unlimited freedom to use that photograph for any purpose. The legal position depends on several factors, including where the photograph was taken, what it shows, who took it, why it was published and how it is being used.
Does Privacy Protect a Person’s Photograph?
The Supreme Court has recognised privacy as a fundamental right under Article 21 of the Constitution. The right to privacy includes aspects of personal autonomy, dignity and individual privacy. However, this does not mean that every photograph of a person requires prior consent before it can be taken or published.
A photograph taken at a public event or on a public street can raise different legal questions from an image captured inside a home, changing room or another place where a person can reasonably expect privacy. The circumstances surrounding the photograph therefore become important when determining whether a person’s privacy has been violated.
Can Someone Take Your Photo in a Public Place?
Being present in a public place does not automatically prevent other people from photographing you. For example, people attending a public event can appear incidentally in photographs or videos taken by attendees, journalists or bystanders.
However, the fact that a person was visible in public does not automatically give everyone an unrestricted right to use that photograph. The purpose and manner of publication can create separate legal issues, particularly where the photograph is used for harassment, threats, sexualised content, impersonation, defamation or commercial exploitation.
What If the Photograph Shows a Private Act?
The law provides stronger protection where an image concerns a person’s private areas or circumstances in which the person reasonably expects privacy.
Section 66E of the Information Technology Act, 2000 deals with the intentional or knowing capture, publication or transmission of an image of a person’s private area without consent, in circumstances violating the person’s privacy. The provision specifically defines a person’s private area and applies to the circumstances covered by the section.
Voyeurism is also a specific criminal offence. Under Section 77 of the Bharatiya Nyaya Sanhita, 2023, voyeurism concerns watching or capturing the image of a woman engaging in a private act in circumstances where she would ordinarily expect not to be observed, and includes certain forms of dissemination of such images.
The Supreme Court’s decision in Tuhin Kumar Biswas @ Bumba v. State of West Bengal concerned the earlier Section 354C of the Indian Penal Code, which dealt with voyeurism before the BNS came into force. The Court emphasised that merely photographing or recording a woman without consent does not automatically establish voyeurism. The prosecution must establish the specific ingredients of the offence, including that the woman was engaged in a private act.
Who Owns the Copyright in the Photograph?
Copyright creates another important distinction. Under the Copyright Act, 1957, a photograph is an artistic work and the person taking the photograph is generally treated as its author.
Section 17 provides rules concerning the first ownership of copyright, including a specific provision dealing with photographs taken for valuable consideration at the instance of another person.
This means that the person appearing in a photograph and the person who owns copyright in that photograph can be different people. Simply appearing in a photograph does not automatically make the person pictured its copyright owner.
Copyright and the right to control one’s likeness are separate issues. A person may not own copyright in a photograph simply because they appear in it, while the use of their name, image or likeness can raise separate questions concerning privacy, personality rights or other applicable laws.
What If Someone Uses the Photograph Commercially?
A different legal issue can arise when someone’s photograph or likeness is used to advertise a product, promote a business or otherwise obtain commercial benefit without proper authorisation.
Indian courts have recognised personality and publicity rights in appropriate cases, particularly where a person’s identity or likeness is commercially exploited. However, these rights are not contained in one single statute. Courts have developed protection through principles involving privacy, dignity, intellectual property and other applicable laws.
The issue can be particularly significant for celebrities and public personalities, although the legal position ultimately depends on the facts of each case.
What If the Photograph Is Used to Harass or Defame Someone?
The manner in which a photograph is presented can also change the legal position. An ordinary photograph may become legally problematic if it is accompanied by false allegations, threats, sexually explicit material, impersonation or targeted harassment.
For example, the photograph itself may be genuine, but a false caption accompanying it could create a separate legal issue. Similarly, editing an ordinary photograph to create misleading or sexually explicit content can raise concerns that would not necessarily arise from the original photograph.
Depending on the circumstances, different provisions of criminal and civil law may become relevant. The legal question is therefore not simply whether a photograph was uploaded without consent. The content surrounding the photograph, the purpose behind its publication and the harm caused can also matter.
What About AI and Deepfakes?
Artificial intelligence has made image misuse more complicated. A person’s photograph can now be manipulated to create face swaps, deepfakes or misleading promotional material.
Such conduct can raise several legal concerns involving privacy, reputation, impersonation, personality rights and copyright, depending on how the image was created and used.
This makes it important to distinguish between an ordinary photograph and the misuse or manipulation of someone’s identity. The fact that an image started as a genuine photograph does not necessarily make every later use of it lawful.
What Can a Person Do If Their Photograph Is Misused?
A person whose photograph is being misused should first preserve evidence. Screenshots of the post, account, caption, comments and URL can be useful. If the content is being reposted across different accounts, those instances should also be documented.
The person can report the content to the relevant social-media platform and request removal where the platform’s policies or applicable law provide a basis for doing so.
Depending on the circumstances, civil or criminal remedies may also be available. Where the photograph involves intimate material, threats, extortion, impersonation or serious harassment, obtaining appropriate legal assistance can become particularly important.
Can Someone Post Your Photo Without Permission?
There is no blanket rule that every photograph posted without consent is automatically illegal. A photograph taken at a public event can raise very different legal questions from an image secretly captured in a private setting. Similarly, using a photograph for ordinary commentary is different from using someone’s image for commercial exploitation, harassment or harmful manipulation.
The important questions are where the photograph was taken, what it shows, who took it, who owns the copyright, why it was published and how it is being used.
Conclusion
A person appearing in a photograph does not automatically have an absolute right to prevent every use of that photograph. At the same time, another person does not receive unlimited permission to exploit or misuse someone’s image simply because the photograph was taken in public.
Indian law approaches these situations through several areas, including privacy, copyright, criminal law and personality rights. Being photographed is not the same as giving unlimited permission to use the photograph. Whether posting someone’s photograph creates a legal issue ultimately depends on the context, purpose, content and manner of use.
