Using another person's picture on a dating website

02 June 2021

Not reviewed after the date of publication

Question: 

Is it a criminal offence to use someone else's picture without their consent to set up a profile on a dating website with different name?

Answer:

Using another person's photograph without their consent on a dating website is not a specific criminal offence and is most likely to amount to a potential infringement of copyright laws, which would be a civil wrong instead. However, in some circumstances using a photo in this manner may be a relevant factor contributing towards the commission of the following offences:

Fraud by False Representation – section 2 of the Fraud Act 2006.

As an example, should the photograph have been used on the website as a phishing attempt in order to make a financial gain, then it may be that this offence could be considered. However, for the offence to be satisfied an individual must have made a representation with the intention of making a gain or causing loss or risk of loss to another. The gain or loss does not actually have to take place.

A representation may be made by conduct, which may be satisfied by using the photo. However, a representation is also required to have been made dishonestly, having satisfied the legal test for 'dishonestly' in Ivey v Genting Casinos (UK) [2017], which overruled the subjective element of the previous test for dishonesty established in R v Ghosh (1982).

Knowingly / recklessly obtain or disclose personal data without consent of controller – section 170 of the Data Protection Act 2018.

The offence criminalises the deliberate or reckless obtaining, disclosing, procuring disclosure to another and retention of personal data without the consent of the data controller. Another person's photo would amount to personal data for the purposes of the Act.

Harassment or stalking, contrary to section 2 of the Protection from Harassment Act 1997.

Where the use of the photograph was done in a targeted manner in order to cause alarm or distress, with an element of oppression towards another person, then this may be another applicable offence. Whether this does apply, will depend on whether use of the photograph was done in a targeted manner towards another and constitutes a course of conduct.

It is also worth noting that using someone else's photo may also violate the terms of the user agreement accepted upon joining the website and due to such, would likely justify the website removing the users account should they be notified of the use.

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