Is It Time to Recognize the Right to an Image?

Abstract

One of the surprising developments within technologically advanced societies in the 21 st century is the new and insidious ways with which violence against women and children is being perpetuated. From unreasonable standards of female beauty being promoted on social media, to viral humiliation videos and revenge pornography, young people and females in particular are being subjected to a widening array of assaults which appear to be leading to an equally wide range of mental illnesses and unfortunate outcomes such as narcissism, depression and teenage suicide. The common thread to all of these problems often lies in the misuse of the visual image of another. Here, the commercial success of copyright law highlights a striking failure at the sociological level. This paper sets forth a proposed solution, recognition of a heretofore unrecognized human right belonging to the subjects of image capture: the right to an image. The right to an image, as laid out in this paper, is a right of image subjects to control against the unreasonable dissemination of their image. The right to an image can be understood as either a next generation international human right, or as an unrecognized, yet implied, existent right under the common law, or both. It is a right which, albeit in a slightly different variant, appears to be already recognized in Confucian philosophy under the ancient Oriental concept of “face”. This paper lays out a harm- based formula for applying the concept of face, and explores a range of scenarios under which legal outcomes might be impacted.