In today’s day and age, taking a photo is as easy as whipping out your mobile phone from your pocket and snapping a still image, or recording a moment. Increasingly, one’s personal data might not be so personal anymore. The Personal Data Protection Act 2012 (No. 26 of 2012) (“PDPA”) thus concretised a general data protection regime in Singapore which “govern[s] the collection, use and disclosure of personal data by organisations”.
In this article, we will highlight some of the key provisions in the PDPA that apply to photography. Photographs or video recordings are included in the definition of “personal data” in the PDPA, and thus would be covered under the legislation. Only the personal data of natural persons, whether living or deceased, is protected under PDPA. Data relating to corporate bodies and other entities are not protected or covered under the PDPA. However, the PDPA does not apply to individuals “acting in a personal or domestic capacity”, employees acting in the course of employment with an organisation, public agencies, and other organisations authorised for the purposes of the Act.
The Singapore Personal Data Protection Commission (“PDPC”) also issued advisory guidelines to assist in the interpretation of provisions of the PDPA. Of particular relevance are the “Advisory Guidelines on the Personal Data Protection Act for Selected Topics” (“Guidelines”), issued on 24 September 2013 but revised on 31 August 2018. These set of guidelines discuss the application of the PDPA to photography.
This article seeks to explain whether you need to obtain an individual’s consent to take a photograph or video recording, and second, whether you need to obtain a “talent clearance” when you use that data commercially.
Do you need to obtain an individual’s consent to take a photograph or video recording of the individual?
In general, for most situations, you will need to obtain consent from the individual if you are collecting, using or disclosing their personal data. This means that you must notify the individual of the purposes for the collection, use or disclosure of the personal data, and the individual provides his consent for that purpose. However, there are two broad exceptions as follows:
Taking photos in a personal capacity
First, you do not need to obtain the individual’s consent if you are taking the photograph in a personal capacity. For example, if you are taking a photograph of a friend whom you are catching up with over dinner, you do not need to obtain your friend’s consent before taking the photograph.
Taking photos in a public place
Second, you do not need to obtain an individual’s consent to take a photograph or video recording in a public place, even if that the individual appears in and is identifiable from the photograph that you took. This is because the data is generally available to the public, and the intent of the PDPA is not to unduly restrict activities performed under reasonable situations. An example provided in the Guidelines for when you ought to reasonably expect your personal data to be collected is when you are strolling down the aisles in a shopping mall, or when you are strolling in a public park. Another example of what constitutes a public place is if you organise a birthday party at a fast food restaurant. If you book a private room or area and it is on an invitation-only basis, the birthday party would not be considered open to the public. On the other hand, if you occupy the general dining area of the restaurant, the party would be considered open to the public by virtue of the fact that it is easily accessible by non-party guests as well.
Exceptions which fall under the Second Schedule
If you do not fall under either of the above two categories, you generally must obtain the subject’s consent. However, the Second Schedule of the PDPA also provides for circumstances where the collection of personal data about an individual without their consent is permissible. Most relevantly, if the collection of the data is necessary for a purpose that is clearly in the interest of the individual, if the data is collected solely for artistic or literary purposes, or if the collection is necessary in the national interest amongst other things. The full list of 18 exceptions can be found under the Second Schedule of the PDPA.
Although the PDPC also encourages that as good practice, organisations collecting images, even in public places should inform individuals that their data is being collected. This can be through putting up of notices that such a collection is occurring.
Do you need to obtain a “talent clearance” when you use the personal data you collected commercially?
In most cases, if you use the personal data you collect for commercial purposes, you are likely to act outside your personal/domestic capacity. As such, you can only use the personal data if you obtain the consent of the subject of your photograph or video recording. For example, if you submit a photograph or video recording taken at a family event for a competition, in which the prize is a contract to provide professional services for the contest organiser, your collection of the data is unlikely to be within your personal/domestic capacity, and you would have to obtain consent.
That being said, in Singapore, only consent is required, and the obtaining of talent clearances is not. This concept of talent clearances is often used overseas, most prominently in the US. This is because in the US, the “right of publicity” and “right of privacy” is protected by a combination of common law and statutes. The justification of such a right is that you as an individual, should have a right to control the way in which your “personality’ or “likeness’ is represented and/or commercialised by others. While this justification can be applied in principle to Singapore, the requirement of obtaining talent clearances cannot be implied. We do not have statutes which concretise a “right of publicity” in Singapore, but we do have a different set of applicable laws with different types of safeguards.
PDPA
The first port of call for protection from misuse of one’s personal data in Singapore is the PDPA. Thus, if an organisation wanted to use a photograph or video recording it possessed in an advertisement, it would only have to obtain consent of the subjects beforehand. This is consistent with the position by the PDPC in the Guidelines at para 4.7, where an illustration was provided that an organisation would have to obtain an individual’s consent before publishing his/her photograph for its business purpose. As mentioned above, this consent would require organisations to notify the individuals, ask for their permission before collecting and using the data, with room for individuals to withdraw their consent at any point.
Tort of passing off and/or defamation
Additionally, while the right of publicity is not recognised in Singapore, in very narrow circumstances, the individual can sue under the tort of passing off, or even under defamation. These would protect the individual against the “commercial exploitation of one’s identity in advertising and selling”. This pertains to the accuracy in the use of the data, even if consent is given to collect the data in the first place. If you feel that your likeness was used commercially in a way which misrepresented you, or hurts your reputation, you could sue for damages or an injunction under one of the above two torts, but understandably, you would have to fulfil different elements before succeeding in your claim.
In summary, the PDPA imposes an obligation on organisations (barring exceptions) to act responsibly in collecting, protecting, and using/disclosing of individuals’ “personal data”. However, it does not necessitate the obtaining of talent clearances when using the data commercially, but does require at the very minimum, the obtaining of consent before the data is being used.
Need legal advice?
If you have any questions about the PDPA, you can request for a quote with Parvathi Annanth or other lawyers. With Quick Consult, from a transparent, flat fee from $49, a lawyer will call you on the phone within 1-2 days to give you legal advice.
This article is written by Parvathi Annanth from TJ Cheng Law Corporation and edited by Justin Lim of Asian Law Network.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.
