Sensitive publications cause unnecessary problems for image users
We have all seen them, publications using pictures of people illustrating sensitive topics such as cancer insurance, dating sites and survivor benefits. Become a smarter image user and learn how to deal with the gray areas regarding image use.
A publication is considered sensitive when images of identifiable people are used in contexts that might offend the portrayed person. The press code of ethics is a good basis to start from. The idea is to provide individuals with protection against publicity damages beyond what the law provides. A simple rule of thumb is that if you would feel uncomfortable being seen in a particular context, there is reason to believe that the depicted model also may feel uncomfortable. In that case be sure to contact us to obtain additional permission from the model!

We have written model permission agreements and contact information so that we can contact the model in question and ask for additional permission for a sensitive publication. Should the model decline, it means that we have stopped a problem before the publication has taken place, and no bad publicity has occurred to you or your customer. When there is a negative response from the model to a particular publication we will gladly help you to find a similar picture.

Typical contexts that you should carefully consider before you post a picture of an identifiable model are drugs, disease or other medical problems. Other contexts involve death, politics, dating sites and social issues. Testimonial advertising may be particularly sensitive, where the model may be perceived as having been quoted.
Here are three images with a similar feel, but where the middle picture would require an additional condition for publication in sensitive contexts:

About using images in sensitive contexts
by Catharina Ekdahl of Ekdahls Juridik & Föreläsning, Swedish lawyer specializing in photography related legal issues.
We live in a world full of photographic images. They are there when we wake up in the morning and follow us all through the day until we turn off the light for the night. Pictures in the newspaper, images on social media, photos online, pictures on billboards on the city streets, squares and public transport. Not to mention all the images on the various daily television programs. The old adage that a picture is worth a thousand words has become more valid than ever.

Pictures stick out from the media flow that overwhelms us, and they affect us immediately in a way that text rarely does.

At the same time, people's fear regarding appearing in pictures or having their names associated with various sensitive situations, is on the rise.
Seeing themselves in advertising for someone else's products or services may be at least as sensitive as finding pictures of themselves on Facebook, a bit tipsy or dancing wildly at a recent office party.

Grey areas

In many countries legislatures have made attempts to regulate various types of intrusive image use. If it involves commercial advertising, it requires consent from the living and identifiable person depicted. Photos of identifiable people can also be equated with the handling of personal data.

Consent is always required when such images are used digitally, are searchable, or threaten to violate anyone's privacy. Exemption from the requirement for consent may apply if the purpose is journalistic or artistic, or if, as in Sweden, there is an automatic or voluntary impediment to publication with a designated publisher.

Alongside the legislation, there is a gray area that is more about ethical considerations than legal violations. For instance, during a general election in Sweden, anyone may appear in a political party poster campaign without our consent. The same applies to advertising for a non-profit organization or other non-profit activities, whatever values they may represent. If there is only a valid impediment to publication with a publisher your name can appear in a database filled with legal judgments and there is nothing legally you can do to stop it.

Model Release
In the area of photography, there is something called a Model Release Form. It is a written consent from people in the image, which governs the legal requirement for consent. Most professional photographers are well aware of the importance of using written Model Release Forms. Oral consent, legally speaking, implies the same as above, but if for some reason there is disagreement, oral consent is far more difficult to prove.

There are hardly any stock agencies that does not have written contract terms with the photographer stating that they always must obtain valid consent for the pictures that are submitted. If there is no written consent, this must be clearly indicated. This often means that the picture is more difficult to sell because of potential licensing limitations.
Awareness among the public grows every day

It is important to know that depicted people always have the right to revoke their written consent. Anything else would be directly unreasonable under Swedish contract law. People who previously have given their consent to use the image, may suddenly have reason to change their mind, due to job change, changes in family relations, etc.

In a stock agency's End User License Agreement it is often stipulated that licensed images may not be used in offensive contexts. These usually involve situations where common sense says that the person depicted should have been asked even though there is no legal requirement. If there is any doubt from the user regarding where the line is drawn, it might be a good idea to turn to the photo agency for advice. The stock agency will try to ensure that the image consent is properly obtained for that use, if only to prevent future issues.

Keeping track of when the consent of the people depicted is required by law can save a lot of time and money. Because one thing is certain, awareness among the public about what the law says, and what rights we have as depicted people, grows every day. Otherwise, there are certainly lawyers with sufficient knowledge that would gladly inform individuals if and when they occur in different sensitive image contexts, in which consent is required.
HOW THE PHOTOGRAPHER THINKS: Ulf Huett Nilsson on sensitive publications
The health magazine "1177 Vårdguiden" is regularly sent out to all residents in Stockholm by the Stockholm County Council. Ulf Huett Nilsson, who also happens to be one of Johnér's best-selling photographers, does assignments for the magazine on a regular basis. We asked Ulf a few questions regarding his thoughts on the topic of using images in sensitive contexts.

Regarding your assignments for "1177 Vårdguiden", what is your concern when photographing people and the topic is of a sensitive nature?
"We ensure that those taking part in the magazine articles are aware from the beginning that photography is included, so they have the opportunity to decline. Total transparency and providing as much information as possible is important! Sometimes when there are articles of a more general nature, we use models from a model agency, or friends and family. However, it is equally important to provide information to the models so that everyone knows all the facts up front. Before the magazine/web site is printed and published, approval is required from all participants."

What type of information do you usually give to models you photograph when the pictures end up at an image agency?

"It is always my ambition to tell it like it is. That the images may end up in different types of context. The general rule is that as a model you are to be contacted if the image will be used in a political situation, or any other situation that is regarded sensitive. It provides the models security, which encourages them to allow inclusion in an image agency's catalog."

Do you have any experience with models being disappointed after having pictures from an image agency published?

"No, not me personally. However, I have been disappointed because models have declined consent in contexts that I don't feel are sensitive. But obviously it is important they are allowed to speak up. I carefully consider which pictures I leave with the image agency. I always ask myself if I am absolutely sure that if everything is ok in every way!"

You are one of Johnér's bestselling photographers and have many images with people in our collection. What would you want customers to think about when purchasing stock photography of people?

"That they are careful to communicate where and how the images will be used to give the agency the opportunity to contact models in situations that may be deemed sensitive."
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