right in the picture

As a result of the emergence of photography and what it entails of disturbing human comfort and tranquility, and the exposure of his facial features to photographic lenses without his permission, what is known as the right to image appeared in the world of law, in order to protect the human image from all attacks or violations that could affect his honor and consideration. The use of the image to distort the personality of its owner or to be exploited to promote a specific idea or product, which led to the necessity of recognizing the existence of the human right in his image that entitles him to prevent others from photographing or publishing his image without his consent, and required the intervention of the legislator to impose protection in various branches of law and even at the level of the constitutional text.

Perhaps one of the most important developments that prompted the intervention of the legislator:

The technological development witnessed by the world, which enabled man, in a large and easy way, to take the picture and use it, it is no longer restricted to professionals, but it has become accessible to most of the people due to the ease of obtaining the machine and the ease of its use.

Sweeping the image of the public judiciary through the visual and written media and giving it importance in conveying the event or idea more than expression in writing or any other means.

The spread of sensationalist journalism on a large scale and its dependence heavily on the image without paying any attention to the private lives of individuals, as much as it is concerned with the number of sales in order to achieve the greatest amount of profits, and sometimes to achieve political goals by forming a public opinion in a certain direction based on the published image.

All of these reasons and others made the image, on the one hand, have special importance, and on the other hand, it is vulnerable to misuse, thus affecting the private lives of individuals.

Despite the importance of the image for its owner, and what is embodied in his physical and moral entity, it reflects the nature of his emotions, it has become necessary to protect a person’s image from attacks that target his image, so the criminal law should be put together with the civil law in order to create legal mechanisms to protect people against Taking and publishing their photos, and we find that most international constitutions, including the Moroccan Constitution of 2011, established criminal protection in general in order to criminalize and punish all infringements on the sanctity of private life, including the human right to his image.  through the application of explicit legal texts that recognize the right of a person to his image and protect it from every attack by taking, recording or publishing in order to harm his reputation and honor.

Accordingly, the Moroccan legislator, in turn, has sensed the seriousness of the attack on the sanctity of private life, which poses a threat to the reputation and honor of persons and a flagrant violation of their secrets, especially the right to image. The Moroccan legislator added by virtue of Law No. 13-103 of March 12, 2018, which introduced new articles protecting the right of The person is in his image while in a private place and without his consent, and this is related to Articles 447-1, 447-2 and 3-447 of the Moroccan Criminal Code, which criminalize the installation, recording, broadcast or distribution of the image of a person while he is in a private place and without his consent. The act with imprisonment from six months to three years and a fine of 2,000 to 20,000 dirhams. The Moroccan legislator has interacted with the reality of privacy violation, especially what Moroccan society knows of development and prosperity with the electronic age, and we do not forget that with the development of modern technical devices, the reality of crime has taken the direction of new crime, including crimes of registration, retention and publication, which represent a reality threat to the familiarity of life The effect of this has been the increase in cases of human surveillance and follow-up secretly and without his knowledge, which makes the talk today about the matter of taking pictures of people in a clear and precise manner, not to mention the monitoring devices that take pictures from long distances from thousands of miles away on the other New monitoring devices.

With regard to the protection stipulated in the Press and Publication Law, and given that the media field is considered a fertile ground for attacks on the private life of individuals as the right to the image, Law 88.13 related to the press and publication deals with the protection of the private life of individuals through the text of Article 89 of this law which stipulates that: Any exposure to an identifiable person by fabricating allegations or disclosing facts, photographs or intimate films about people related to their private lives is considered interference in private life, unless it has a close relationship with public life or an impact on public affairs.

This interference, if it is published without the consent of the person concerned , is punishable by the penalty stipulated in the second paragraph of Article 85 related to insult “and a fine of 10,000 to 50,000 dirhams for insults directed in the same way to individuals.”

In the event that the publication is published without prior consent and consent and with the aim of harming the private life of persons or defaming them, the penalty stipulated in the first paragraph of Article 85 above related to defamation shall be imposed. With the right to compensation stipulated in Article 87, “Anyone who considers himself a victim of defamation, insult, or insult to private life, or infringement of the right to a picture, directly or by transmission, may be able to identify him through the expressions used in the relevant publication or newspaper.” The concerned person, including audio and video materials, has suffered damage, may request compensation in accordance with the conditions and formalities stipulated in the legislation in force.

Proceeding from this article, it can be said that the Moroccan legislator, in his desire to protect the private life of persons, considered publishing a person’s image without his consent to be considered an act that affects his private life, which requires criminal accountability, in addition to the right of the aggrieved to claim compensation for material and moral damages incurred by him as a result of publishing his image without his consent.

In order to achieve the crime of infringing the right to the image, publishing must be done by any means of publication, regardless of the prop used, in addition to not obtaining the consent of the person concerned, but if the owner of the image expresses his consent, this order absolves the journalist or publisher of responsibility.

In conclusion, it can be said that the Moroccan legislator, although he has included some texts related to the protection of the right to the image, whether in the criminal law or the law of the press and publication, but that this is not enough compared to the technological development with which the assault on the right to the image has become an easy matter, and therefore the matter It requires a holistic view to protect the right to the image and at the same time take advantage of the advantages of the technological revolution in the field of information and communication.