The act of using personal images without permission in advertising activities

The act of using personal images without permission in advertising activities

1. Legal Basis

• Law on Advertising No. 16/2012/QH13 dated June 21, 2012
• Decree No. 38/2021/ND-CP dated March 29, 2021 of the Government regulating penalties for administrative violations in the field of culture and advertising (amended and supplemented by Decree No. 128/2022/ ND-CP December 30, 2022)

2. Is advertising using an individual’s image without permission a violation of the law?

Prohibited acts in advertising activities are specified in Article 8 of the Law on Advertising as follows:

Prohibited acts in advertising

1. Advertising the products, goods and services specified in Article 7 of this Law.
2. Using advertisements that reveal the State secrets, harm the independence and National sovereignty, National defense and security.
3. Using unaesthetic advertising that is contrary to Vietnamese historical, cultural, ethical, and fine traditions.
4. Using advertisements that affect the urban scenery, the traffic safety and the social order.
5. Using advertisements that degrade the respectability of the National flag, the National emblem, the National anthem, the Party’s flag, national heroes, cultural celebrities, the leaders of the State and the Party.
6. Using advertisements that express racial discrimination, sexual discrimination, prejudice against disabled people, or violate the freedom of belief and religion.
7. Using advertisements that offend the prestige, honor and dignity of other organizations and individuals.
8. Using advertisements that contain other people’s pictures, words or text without obtaining their consent, unless otherwise permitted by law.

Therefore, advertising that uses an individual’s image without that individual’s consent is considered a violation of the law, unless permitted by law.

3. What are the penalties for advertising that uses an individual’s image without that individual’s consent?

The level of administrative penalties for advertising using an individual’s image without that individual’s consent is specified in Point b Clause 3, Point a, Point b Clause 8 Article 34 of Decree No.38/2021/ND-CP, supplemented by point a, clause 4, Article 2 of Decree No.128/2022/ND-CP as follows:

Violation of regulations on prohibited acts in advertising activities

3. Imposing the fine ranging from 20,000,000 dong to 40,000,000 dong for one of the following violations:
4. a) Advertising in breach of laws on intellectual property;
5. b) Showing adverts containing personal images, oral statements or writing without their consent, unless otherwise permitted by laws….

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8. Remedies:
9. a) Compelling the removal, demolition and deletion or erasure of advertisements or the recall of printed newspapers and magazines with advertisements in case of commission of the violations specified in clause 1, 2, 3, 4, 5 and 6 of this Article;
10. b) Compelling offer of apologies to organizations or individuals in case of commission of the violations specified in point b of clause 3, point a of clause 4 of this Article;

Accordingly, unless permitted by law, advertising that uses an individual’s image without that individual’s consent may be subject to administrative sanctions with a fine ranging from 20,000,000 VND to 40,000,000 VND for individuals, and from 40,000,000 VND to 80,000,000 VND for organizations. At the same time, violating organizations/individuals are also forced to remove, dismantle, delete advertisements or recall newspaper and magazine products printed with advertisements and are forced to personally apologize in writing