Unauthorised Use Of Woman's Photos | Photgrapher Prima Facie Guilty Of Breaching Her Privacy, Not Parties Who Used Photos To Advertise: Bombay HC

While hearing the plea of a woman, who has accused Maharashtra and Telangana governments, Congress Party and other political parties' of 'unauthorisedly' using her photographs in advertising their different schemes, the Bombay High Court on Tuesday prima facie held that these parties or the governments are not at fault and instead, the 'blunder' is done by the photographer, who clicked the woman's photos and uploaded it on US-based platform 'Shutterstock' without her prior permission. 

A division bench of Justices Girish Kulkarni and Advait Sethna noted that the photographer Tukaram Karve had clicked photos of the petitioner woman - Namrata Kawale and without properly reading the 'terms and conditions' of Shutterstock, uploaded her photos in a section, which clearly stated that the said photo will be used for 'commercial purposes.'

The bench was convinced that the governments of Maharashtra and Telangana and also the political parties and entities like 'Sabka Dentist' all could not be held guilty of infringing the woman's right to privacy, as all of them had 'purchased' the photograph through legal mode.

"They (petitioner) may not have any problem if you click photos but then did you tell her that you will be uploading it on some third-party website You are the problem you have created all this mess... You have infringed her right to privacy...You knew that this content will be commercially utilised (as per the contract)," the bench orally told Karve's counsel. 

The bench explained how often citizens do not read the 'terms and conditions' on applications they download or on the sites available at the internet, despite the same being 'professionally' put up. 

"These websites are very professional but you don't read terms and conditions... You just want to put your hobby on their site," the judges observed. 

The bench was irked to note the submission of Karve that since the petitioner was okay to him clicking her photo and then he gave her a print copy of the said photo for free, now she cannot claim that her privacy was violated, as he now has 'copyright' on the photo. 

"Please show that you took prior permission of the petitioner? If we aren't satisfied then we will hold you guilty...You cannot say that you took photos and gave them print copies so you have the copyright....Prima facie he (Karve) is the problem... He has created this blunder... Political parties and even the governments have their legal transactions..." Justice Kulkarni opined.

During the hearing, the judges noted that there are 'agencies' in India which have agreements with Shutterstock and it is from these agencies, the political parties, governments etc 'purchase' these photos after paying subscription charges or royalties. 

In the case of Maharashtra government and a local MLA, the bench noted that the photos were purchased through one 'Mahata Multimedia' company, an agency for Shutterstock, for which the agency is paid Rs 4.39 lakhs, yearly.

"Somebody has purchased the photos you cannot find fault with the act of the State of Maharashtra and Telangana or the political parties because they have purchased the photos through proper and legal mode...Shutterstock is a foreign company its agent Mahata is there and the respondents have paid money to this agency has purchased the photos..." the bench said. 

As regards, the photographer Karve, the bench said it is yet to be decided if he uploaded the said photos honestly (without knowing that the same would be used for commercial purposes) or not. "He didn't read the terms and conditions... The whole problem with all these internet contracts is people do not read conditions...If you read the conditions, you won't subscribe to these apps...We find no fault with the other respondents except the photographer," the bench said.

The bench therefore, impressed upon the petitioner that no point would be served if the instant petition is pressed against the other respondents since they have purchased the photos through proper mode.

"Content so far as Shutterstock is concerned is legal content. You need to take instructions (as against other respondents) otherwise we will have to dismiss it," the bench orally told the petitioner's counsel. 

With these observations, the judges adjourned the matter for further hearing, with a directive to the photographer to explain if he uploaded the photos dishonestly. 

Background:

Namrata Ankush Kawale (petitioner) submitted that one Tukaram Nivrutti Karve (respondent no. 1) who belongs to her village had taken her photographs a few year back. She stated that without her consent, he uploaded her photos on shutterstock.com (respondent no. 2).

She stated that various political parties, private agencies and State Governments including Government of Maharashtra, Government of Telangana, Congress Party of Telangana, Ministry of Rural Development, State of Odisha, State of Karnataka in advertising their different schemes are using her photos. She stated that her photographs are being used in advertisement and hoardings throughout the country and in online platforms without her consent.

The petitioner thus sought to permanently restrain the respondents from using, displaying, distributing, sharing or selling her photograph on their website boards, social media platforms, advertisement, promotions or any other medium.