Image Rights and Unauthorized Use

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

The right to one’s image is a fundamental guarantee under Brazil’s Federal Constitution. It protects every person against the unauthorized use of their appearance, photograph, or any other visual representation. When that protection is violated, the victim can seek judicial redress for moral and material damages, without having to prove any financial loss.

What the right to one’s image is

The right to one’s image is one of the so-called personality rights, set out in Article 5, item X, of the 1988 Federal Constitution and in Articles 11 to 21 of the Civil Code. It is a stand-alone right. It exists independently of other rights such as honor or privacy, although it is often connected to them.

This right means that no one may have their image captured, reproduced, disseminated, or used commercially without their express consent. It covers photographs, videos, caricatures, paintings, and any other form of visual representation that allows the person to be identified.

Consent to use an image should be specific. In other words, permission given for one purpose does not automatically extend to others. A person who allows a photo to be used in a news story, for example, has not authorized the same image to be used in advertising campaigns.

When the use of an image is considered unauthorized

An image is used improperly whenever it is captured, reproduced, or disseminated without the permission of the person depicted, or when the use goes beyond the limits of the consent given. Below are the most common situations.

Commercial use without permission is one of the most frequent forms of violation. Companies that use photos of customers, employees, or third parties in advertisements, on websites, or on social media without permission commit an unlawful act that can give rise to compensation.

Posting on social media can also create civil liability. Publishing photos or videos of other people without their consent, especially in embarrassing or humiliating contexts, violates the right to one’s image and can create a duty to pay compensation.

The right to one’s image is inviolable, and its protection does not depend on proof of financial loss. Unauthorized use alone is enough to create a duty to provide redress.

Another important scenario involves the image of a deceased person. In that case, the heirs have standing to seek protection, as provided in the sole paragraph of Article 20 of the Civil Code.

Exceptions to the right to one’s image

In some situations, an image may be used even without express consent. Brazilian legislation and case law recognize several important exceptions that balance the right to one’s image against other constitutional values, such as freedom of information and the public interest.

Images captured in public places, at events of public interest, or for informative journalistic purposes may be used without permission, as long as they do not expose the person in a humiliating or degrading way. Use is also accepted for purposes of public safety, criminal investigation, and the administration of justice.

Public figures, such as politicians and celebrities, receive narrower protection while carrying out their professional activities, but they keep full protection over their private lives. It is essential to distinguish between legitimate public interest and mere curiosity.

How to seek redress for unauthorized use of your image

A person whose image has been used without authorization can file a lawsuit to stop the use, have the material removed, and obtain compensation for moral and material damages. Article 12 of the Civil Code expressly provides for this possibility.

Compensation for moral damages caused by unauthorized use of an image is owed regardless of proof of material loss. The Superior Court of Justice (STJ) has established that this is presumed harm (in re ipsa), meaning that proof of the unauthorized use is enough to give rise to the right to redress.

To strengthen a lawsuit, it is advisable to gather evidence of the unauthorized use, such as screenshots, links to posts, printed materials, or any other record showing the use was not authorized. Producing evidence is essential to winning the case.

It is also possible to request an urgent injunction (tutela de urgência) for the immediate removal of the content, especially when leaving the image online causes continuing harm to the victim. This mechanism is widely used in cases involving social media and digital platforms.

Compensation amounts and case law

Compensation amounts for unauthorized use of an image vary with the circumstances of the case. Courts consider factors such as how widely the image was disseminated, the context in which it was used, the purpose of the use (commercial or not), and the status of the parties involved.

In cases of unauthorized commercial use, awards tend to be higher, because they involve unjust enrichment by whoever exploited another person’s image. In cases of posting on social media between private individuals, amounts are usually more moderate, although they can be significant when the exposure is humiliating.

The STJ’s case law has established important parameters, reaffirming that protection of one’s image is broad and that the absence of consent, by itself, already constitutes an unlawful act. Each situation is analyzed with close attention to the particulars of the specific case in order to guide the best litigation strategy.

Frequently Asked Questions

Can I sue someone who posted my photo on social media without my permission?

Yes. Posting a photo on social media without permission violates the right to one’s image and entitles you to compensation for moral damages. Before taking any legal step, it is advisable to preserve the evidence with screenshots that show the date and time.

What is the deadline for filing a lawsuit over unauthorized use of an image?

The statute of limitations for compensation claims over unauthorized use of an image is 3 years, under Article 206, paragraph 3, item V, of the Civil Code. The period starts to run from the moment the victim learns of the unauthorized use.

Can a company use an employee’s photo in advertising without permission?

No. An employment relationship does not authorize the use of an employee’s image for advertising purposes. The company needs express, specific consent for that purpose, and the employee is entitled to additional pay for the commercial use of their image, according to the established position of the Labor Courts.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.