People are becoming increasingly aware of the risks of unauthorised use of their name, image or likeness online and the importance of being able to manage such use, especially in relation to social media and artificial intelligence (AI).
Unlike the US, there is no standalone ‘personality right’ or ‘right of publicity’ in Ireland. Instead, people have to rely on more traditional laws relating to intellectual property (IP), privacy and defamation to protect and manage the use of their image.
Trade mark
Trade mark law could be used to prevent unauthorised use of a person’s name. However, in practice, this will most likely be invoked by celebrities and public figures as they often register their names or images as trade marks. Registration of a trade mark enables the owner to prevent the registration/use of a later identical or similar mark in relation to the same or similar goods and/or services where there is a likelihood of confusion or association. It is important to note however, that a registered trade mark for a name cannot prevent a natural person from using their own name.
Some public figures, such as Australian model Elle MacPherson and former English soccer player Wayne Rooney, have registered their names as EU trade marks while Dutch model Maartje Verhoef successfully registered an image of her face as an EU trade mark. However, the registrability of such images has not been consistent in the EU and it is unclear whether this will be possible in the future given the recent refusal by the EU IP Office to register a trade mark depicting the image of the Dutch singer Jan Smit. That decision has been appealed so it remains to be seen whether the European stance in respect of image trade marks will change.
Passing off
In certain circumstances, the law of passing off could be used to restrain unauthorised use of one’s name or image. If a person is able to show a reputation or goodwill in their name or image, misrepresentation likely to deceive the public, as well as damage, then they may succeed in a claim for passing off. However, this is only likely to be used by celebrities or public figures who have traded under their names or images, thereby, building up goodwill. For example, in the UK, Rihanna successfully used the law of passing off to prevent fashion retailer Topshop from selling t shirts with a photo of Rihanna without her consent.
Right to privacy
An individual’s right to privacy is protected by the Irish Constitution as an unenumerated right. In addition, it is also protected by the European Convention on Human Rights (ECHR) and the Charter of Fundamental Rights of the European Union. However, the right to privacy is not absolute and must be balanced with the right to freedom of expression.
In general, the publication of a photo taken of an individual is not a breach of privacy, but this will depend on a number of factors, such as whether the subject of the photograph had a reasonable expectation of privacy, whether the photo was taken in a public or private place, if the photograph was of a sensitive nature and whether there is a public interest in the publication of the photograph. For example, in the UK, Naomi Campbell successfully sued Mirror Group Newspapers for publishing photographs of her leaving a drug rehabilitation clinic. The House of Lords held that the publication of such photographs had breached her right to privacy under the ECHR.
Defamation
The law of defamation might be of assistance in protecting one’s image where the use of a person’s name or image or likeness is used in a defamatory manner. A “defamatory statement” is one that tends to injure a person’s reputation in the eyes of reasonable members of society. While there have been no reported decisions in Ireland to date, legal proceedings have been taken by public figures in Ireland against social media platforms and users where their image has been used, without authorisation, to advertise goods and services on social media.
In such cases, a person can seek a Norwich Pharmacal Order from the Court, which requires the social media platform to disclosure information about the anonymous users responsible for the misleading advertisements or posts. For example, in 2023, then Tánaiste (and politician) Michéal Martin issued proceedings against Google seeking information about those that used his name and image in an online financial advertising scam. Following discussions between the parties, it was agreed that the court could make an order requiring Google to provide information about the adverts including the names, email addresses and telephone numbers relating to the accounts associated with them.
Data protection legislation
It may be possible to rely on data privacy laws, namely the GDPR, to prevent dissemination of a photos, audio or video recordings of an individual. Such content is regarded as ‘personal data’ and accordingly data controllers are required to demonstrate a lawful basis for processing such data. Where such content is disseminated online, a data subject can also rely on the ‘right to be forgotten’ to secure the removal of outdated, irrelevant or manifestly inaccurate information from the web.
Consumer protection legislation and advertising standards
Where one’s image, voice or likeness is used in advertising and marketing materials without consent, consumer legislation and advertising standards may be of assistance in securing the removal of the unauthorised material.
Consumer protection legislation prohibits misleading commercial practices including those that are likely to cause the average consumer to be deceived or misled in relation to the commercial origin of a product or service, or the trader’s identity or affiliation with others. The unauthorised use of someone’s image in advertising material to suggest that they endorse or are affiliated with a product could arguably be considered a misleading commercial practice. Complaints can be made to the Competition and Consumer Protection Commission, the body responsible for enforcing consumer protection legislation.
In addition, the Advertising Standards Authority for Ireland (ASAI) investigates complaints regarding non-compliance by its members with its Code of Standards for Advertising and Marketing Communications in Ireland. The ASAI is an independent self-regulatory body which promotes, regulates and enforces advertising standards in Ireland. This can be an effective and inexpensive way for an individual to seek the removal of an advertisement that uses their image without consent.
Section 3.27 of the ASAI Code states that advertisers should have written permission before portraying or referring to a living person in a marketing communication. In 2018, for example, a complaint by the Gaelic Players Association was upheld against the Irish gambling company, Paddy Power for their unauthorised use of the images of certain Gaelic Athletic Association players in an advertisement. In that case, the advertisements had run for a specific period and were no longer in circulation and so the company was told not to use the advertisement again.
Further developments
Established by the Irish government just over a year ago, the AI Advisory Council is an independent body established to provide expert advice to the Irish government on all aspects of artificial intelligence. In its recent paper on ‘The impact of AI on Ireland’s Creative Sector’ (8 pages/119 KB), one of the Council’s recommendations included the possibility of Ireland introducing a "personality right," as seen in certain US States and currently under discussion in the UK.
The Council has suggested that Ireland consider promoting the introduction of such legislation at an EU level. They expressed the view that this would provide robust legal protection for individuals, including public figures, against unauthorised digital cloning or imitation of their likeness, voice, or persona by AI systems. Such a measure would not only safeguard individuals from economic exploitation by unauthorised AI-generated imitations but would also address privacy and reputational threats posed by deepfakes as well as promote ethical AI development by ensuring accountability for AI-generated likenesses.
On 1 April, the Protection of Voice and Image Bill 2025 was introduced to the Dáil. The short bill aims to address the “growing problem of deepfakes and the misuse of individual’s data” particularly by AI technologies. The bill creates a specific criminal offence where a person knowingly misuses an individual's name, photograph, voice or likeness in any medium for the purpose of activities such as advertising, political activities and fundraising, without the individual’s consent, and with the intent to cause harm, or being reckless as to whether harm is caused. Harm includes interfering with an individual's peace and privacy, or causing alarm or distress, and includes psychological harm. The bill introduced is a Private Members’ Bill. This means that it was initiated by a non-government member. Such bills are often initiated to draw attention to a particular issue or to focus public attention on a gap in the law. Whether the bill proceeds to adoption remains to be seen because in practice, the government often opposes Private Members’ Bills. We will keep a close eye on developments. In the meantime, the introduction of the bill signalises a growing concern in relation to the misuse of voice image and likeness and the need to address same.
While Ireland does not have a standalone image or personality right, some protection is afforded by the traditional avenues outlined above.. However, this may not be enough. With the increasingly rapid speed at which content is disseminated online and with emergence of new technology, such as AI, enabling the manipulation of images and voices for commercial gain or otherwise, the need for a standalone right to protect against such misuse is becoming increasingly urgent.
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