Stopping someone using a photo of me for business gain

[jakeblues]

Hello,

I am hoping that someone here can help point me in the right direction.

3 years ago, I was a member of a theatre show. It was a tribute show. After I left, the owner of the business continued to use photos of me on the front page of the website. I asked him to stop doing this, but he refused. I therefore contacted the Information Commissioners Office and asked them to intervene. The owner of the business (and website) argued that as I had an historical link with the show it was fair to use my image. The ICO didn't agree, but they refused to help and said I would need to sue the owner. Obviously, it's difficult to place a financial loss to this issue.

Recently, I discovered that he continues to use a photo of me on his main advertising. It seems that his is deliberately doing this because he knows I am in a show which is more successful. I have now contacted him under GDPR 'right for erasure' but he has failed to respond or remove my image.

The long and short of this situation is that I have recently had people attend his shows thinking I would be the main singer; only to discover I wasn't there. He continues to use an image of me on the very front page of his website, which is misleading.

Is there any way I can 'sue' or (even better) get an injunction for him to stop using this image of me for monetary gain? I'm struggling to understand how I could do this via Small Claims (and I am prepared to pay to do it, within reason). I don't really want any financial compensation; I just want him to stop misleading potential customers.

Thank you in advance for any advice.

[R0b]

Hi JakeBlues

I'm curious why the ICO has agreed that the theatre owner is in breach of data protection but refuses to help at all - can you upload their response? They have a range of measures such as penalty notices and compliance notices to ensure that those who breach data protection comply. So it would seem strange why the ICO has decided to refuse to assist if you have a case.

Anyway, while it may be difficult to put a figure on any finance loss, there is not guarantee that an application for an injunction will fall into the small claims track as it is an equitable remedy not a monetary one.

From the sound of things, you could make a claim for both compensatory damages but also an injunction to prevent the owner from using your image again. You could have an action against the owner for the tort of passing off and most obvious breach of data protection. If you want to have a better chance of keeping any claim you make within the small claims track I would suggest you put in some kind of financial compensation which falls below £10,000. If you are not that fussed about compensation you could limit any monetary claim to a nominal amount i.e. a few hundred pounds and still seek the injunction / erasure under GDPR.

Having checked the latest court fees, an application for an injunction in County Courts are at a cost of £308, plus any money claim fee - issue fee is £35 for money claims if claiming under £300. You can't use the money claims online service unless it is for a monetary value only so you will need to fill in a paper form and send it to the Salford County Court Money Claims Centre.

Before you even issue a claim, have you sent a letter before action to the theatre owner? Also, what evidence do you have that he has been profiteering from the use of your image, do you have witnesses who are prepared to give a statement to that effect?

Edit: Another point to add is that you could make a complaint to the Advertising Standards Agency, who can issue a notice for the advert / use of your image to be removed if it is misleading. I believe they have powers to issue a monetary fine for non-compliance but anything beyond that would be referred to trading standards to take action.

[Amethyst]

Hi Jake,

When you joined his production did you sign a contract and did it have any clauses over rights for use of images ?

Is the show he's advertising using your image the same show but with different people ? Is he using your name in his marketing or just the image ?

Is your new show the same 'tribute' act with a different company ? or just entirely different ?

Did you receive the ICOs opinion in writing ? ( as per Robs post )!

If customers are are being mislead into attending his shows by false advertising you could consider the ASA ( advertising standards agency ) and possibly Trading Standards. ( just as another idea )

Welcome to the forum

Sharon
xx

[jakeblues]

Thank you for the prompt responses. I appreciate you taking the time.

• I did not sign a contract
• I have written and expressively requested he remove my images
• The new act is partly the same tribute
• He is not using my name; just the image

Here is the response from the ICO, with any sensitive information removed:

I refer to the above concern that you raised regarding the SHOW NAME and its affiliated website. I am sorry we have not responded sooner, however, we understand Mr Show Manager has been away from his property and so has only recently received our correspondence.

Mr Show Manager has since responded and I have also discussed the issue with him and he has outlined that he would not be removing the images due to the following reasons:

• The images were not taken by Mr Show Manager but by third parties (members of the public) who have supplied them directly or have been taken from Google.
• The same images can be found on the web
• The images do not personally identify you, but show the band in their previous and present guises.

Unfortunately, we cannot compel Mr Show Manager to remove the images from his website as the DPA does not empower us to do so. Moreover, we would consider this concern to be primarily a concern that relates to image rights and/or copyright rather than data protection.

As such, to reiterate our previous advice, you may want to consider applying to the courts to have the images removed, as only the courts have such powers so as to compel that images are removed. We cannot assist with advice regarding this so would recommend that you seek independent legal advice should this be an option to you.

I am very sorry that we cannot do more to assist you in this matter.