Photography and a person’s right to privacy
15 March 2021
The law covering the use of photographs is particularly complex, with intellectual property rights coming into conflict with the rights to freedom of expression, privacy and data protection. It is important, at the outset, to understand that different rights exist depending on whether the person is the author of the photograph – ie the person who takes it, or the subject of the photograph – the person who is featured in it.
In general, copyright exists only to protect the author’s rights. Any claim that the subject of a photograph may wish to bring, for example where they object to having their photograph taken and/or published, will need to be grounded in a claim for privacy, harassment or data protection. The manner in which photography engages with a person’s right to privacy is the subject of this article.
The central issue
It is, firstly, important to focus on what legal principle is at issue, as a distinction must be made between the taking of a photograph and the publication of a photograph. When a person objects to their photograph being ‘taken’, what they are in reality objecting to is its subsequent publication to the public, very often through the news media. The right to take a photograph, however, is separate from the right to publish it to an audience.
It is generally accepted that there is a common law right to take a photograph in a public place, or in a private place where the public are admitted, subject to the terms of entry to that place. The law exists to protect persons against how that photograph is subsequently used, rather than the taking of it per se. As the Court held in the early case of Sports and General Press Agency Ltd v Our Dogs Publishing Co:1
“In my judgment no one possesses a right of preventing another person photographing him any more than he has a right of preventing another person giving a description of him, provided the description is not libelous or otherwise wrongful. Those rights do not exist.”
More recently, in Campbell v MGN,2 the House of Lords observed that “The famous and even the not so famous who go out in public must accept that they may be photographed without their consent, just as they may be observed by others without their consent.” In this jurisdiction, unreported decisions of the District and Circuit Courts have also upheld the right of members of the public to take pictures without the consent of the person being photographed, and to refuse to delete such pictures even if requested to do so by a member of An Garda Siochana.3
When discussing a person’s right to privacy in respect of being photographed, therefore, what we are in reality talking about is not their right to prevent the photograph being taken, but rather their right to prevent the photograph from being published.
The general right to privacy
The right to privacy in Ireland is derived from the Constitution as an unenumerated, personal right under Article 40.3. That all citizens have a right to privacy is without question, and has been explicitly stated in several decision of the Superior Courts.4 For a person to assert their right to privacy, the accepted test is whether, in the particular circumstances, they had a “reasonable expectation of privacy” over what it was they were doing or saying.
It is important to note that the right to privacy is not an unqualified one, and various factors will be seen to curtail that right. The most important factor is that the competing right to freedom of expression for the media is also protected by the Constitution, under Article 40.6.1. It is equally important to note that one of these rights is not considered to be more “important” than the other. Both privacy and freedom of expression are given equal importance, and which prevails in any given situation will depend on the particular facts of that case.
In respect of privacy and the publication of a photograph, Lord Hoffman held in Campbell v MGN while that an individual had no automatic right to prevent their photograph being taken, the fact that we cannot avoid being photographed “does not mean that anyone who takes or obtains such photographs can publish them to the world at large.”5 He held as a general principle that “the widespread publication of a photograph of someone which reveals him to be in a situation of humiliation or severe embarrassment, even if taken in a public place, may be an infringement of the privacy of his personal information. Likewise, the publication of a photograph taken by intrusion into a private place (for example, by a long distance lens) may in itself by such an infringement, even if there is nothing embarrassing about the picture itself.”6
In this jurisdiction, the decision of the High Court in Murray v Newsgroup Newspapers7 should be noted, with Irvine J commenting that “a person does have a right to privacy in respect of his or her identity as contained in a photograph.” This statement, in isolation, might appear to be inconsistent with the principle that there is no such thing as a right to one’s own identity in this jurisdiction, and also that the simple taking of a photograph will not violate a person’s right to privacy. It is suggested, however, that what the Court was stating was that a person’s right to privacy will be engaged when their photograph is subsequently published.
Photography in a public place
The degree to which a person can assert a right to privacy when out and about in public is unclear. On the one hand, there is the dicta of the House of Lords in Campbell v MGN, which quoted with approval the words of the Australian Chief Justice, who held that “part of the price we pay for living in an organised society is that we are exposed to observation in a variety of ways by other people.” On the other hand, the European Court of Human Rights has stressed that even when in public, members of society are entitled to retain their right to privacy. In Von Hannover v Germany, the ECtHR held that “protection extends beyond the private family circle and also includes a social dimension. the Court considers that anyone, even if they are known to the general public, must be able to enjoy a legitimate expectation of protection of and respect of their private life. 8
An assessment of the degree to which a person’s privacy may have been infringed when in a public place will depend, it appears, on whether the person is a public figure, and the nature of the activity being performed. It is generally accepted that public figures will have a reduced right to privacy in respect of being photographed, even if performing duties unrelated to their profession. This was considered by the High Court in Hickey v Sunday Newspapers, in which the Ruth Hickey and her infant son were photographed in a public place coming out of the Registry of Births office. The father of the child was musician David Agnew, who was at the time married to well-known entertainer Adele King, aka Twink. The court held that Ms. Hickey’s right to privacy was not infringed, placing emphasis on the fact that Ms. Hickey was performing a public function, and that the press should have the right to photograph people “attending, for example a funeral, or leaving or entering a court building or polling station.” It also placed weight on the fact that Ms. Hickey had previously publicised information about her son in a magazine article, the very thing she was now claiming to be private.
In the UK, in John v Associated Newspapers, Elton John was photographed getting out of his car and walking to the front gate of his London home. A photographer took a picture of him, and the musician sought an injunction to prevent its publication on the basis that it breached his privacy. The Court rejected Elton John’s claim, saying that he could not have a reasonable expectation of privacy when he was doing something akin to “popping out for a pint of milk”. In Campbell v MGN, Naomi Campbell was photographed on a public street, coming out of a drug rehabilitation clinic. The court held that her right to privacy had been breached, even though there was a public interest in the story, and even though she had previously claimed not to have taken drugs. It held that the nature of the information revealed was deeply private, and also placed weight on the fact that Ms Campbell had been the source of considerable harassment by the press in previous years. It did not, however, award her any substantial degree of damages.
The public interest defence for publication
Where there is a conflict between the applicant’s right to privacy, and a publisher’s right to freedom of expression, a recurring theme has been the question of whether the publication of the material is in the public interest. In Murray v Newsgroup Newspapers, the court held that a “decisive factor” in coming down in favour of the media outlet being allowed to publish a photograph will be “the contribution that the published photos and articles make to a debate of general interest.”
In Murray, the applicant was a convicted sex offender who had been released from prison. He complained that his right to privacy was being violated by newspapers which published multiple photographs of him and his whereabouts, meaning he had to continually move address as he feared for his safety. The court decided that there was no breach of his right to privacy, as no evidence had been given that Mr Murray’s life or safety was in any imminent danger, nor did the articles in question encourage any violence towards him. Furthermore, there was a general public interest in knowing the whereabouts of sex offenders, and there was evidence of the risk of re-offending on his part which was not contradicted by any evidence offered by Mr Murray.
In Mosley v Sunday Newspapers,9 the English High Court echoed the finding in Murray, stating that “In order to determine which should take precedence, in the particular circumstances, it is necessary to examine the facts closely as revealed in the evidence at trial and to decide whether (assuming a reasonable expectation of privacy to have been established) some countervailing consideration of public interest may be said to justify any intrusion which has taken place.”
The issue was considered by the Court of Appeal recently in Nolan v Sunday Newspapers,10 in which the plaintiff’s claim to privacy concerned a photograph of him that was taken at a “swingers” party, and published in the Sunday World newspaper. The Court rejected the submission that Mr. Nolan – a former GAA player – could be considered a “public figure”, and that there was a consequent public interest in the publication of the photograph. In holding that his right to privacy had been infringed, the Court accepted that the publication of the photograph was done purely for “commercial gain.” The Court placed emphasis on the fact that while Mr Nolan had consented to the photograph being taken, he did so in the belief that it was only going to be distributed to other people who attended the same party. He had not consented to it being printed in a Sunday newspaper. The weight given to the extent of publication to which Mr. Nolan apparently consented may be questioned, as it is surely foreseeable that any of the other party-goers who would have been in receipt of the photograph could have uploaded it to social media, presumably without requiring Mr Nolan’s consent to do so.
Furthermore, the Court’s focus on the question of consent may be questioned, as there is no jurisprudence to suggest that only photographs taken with the subject’s consent may be published by the media. It should be borne in mind, however, that the information conveyed by the photograph was of a very sensitive nature, as it revealed details of the plaintiff’s sexual preferences.
Photograph of ordinary members of the public
What though, of a situation where a nondescript photograph is published of a member of the public simply going about their business in a public place – can that be held to infringe their right to privacy? The Supreme Court of Canada considered such a scenario in Vice-Versa & Anor v Aubry,11 in which the respondent had been photographed by the second-named appellant, with the image being published in the first-named appellant’s publication, Vice-Versa, a small circulation arts magazine.
Ms. Aubry was 17 at the time that the photo was taken, had been sitting in a public place, and the photograph was both taken and published without her knowledge. At first instance, she was awarded $2000 for breach of her right to privacy, a decision which was ultimately appealed to the Supreme Court. The Court stressed that the right to privacy would vary depending on the nature of the person, and that “certain aspects of the private life of a person who is engaged in a pubic activity or has acquired a certain notoriety can become mattes of public interest. This is true, in particular of artists and politicians, but also, more generally, of all those whose professional success depends on public opinion.”12 It also stressed, however, that a person who appears in an incidental manner in a photograph,13 or in a photograph featuring several people at a public event, such as a sporting event or demonstration, will not be considered to have their right to privacy violated.
The court held, however, that “An artist’s right to publish his or her work cannot include the right to infringe, without any justification, a fundamental right of the subject whose image appears in the work. While the artist’s right must be taken into consideration, so must the rights of the photograph’s subject.”14 While the Court stressed the need to demonstrate some damage on Ms. Aubry’s part, it held that the mere fact that she had been subjected to mockery by her classmates was sufficient to warrant compensation of £2,000.
It is unclear as to whether the decision of the Canadian Court would be followed in this jurisdiction. In Hickey v Sunday Newspapers,15 Kearns P commented on a person’s general right that their activities not be reported in the press. He held that “publicity, even extensive publicity, of matters which, although private, are not really sensitive should not give rise to legal liability. The concern is with publicity that is truly humiliating and distressful or otherwise harmful to the individual concerned. The right of action, therefore, should be only in respect of publicity determined objectively, by reference to its extent and nature, to be offensive by causing real hurt or harm.”
In light of this decision, the finding of the Circuit Court in an reported decision from 2005 is a curious one. A student sued for breach of privacy following the publication of a topless photo of her, taken on holidays when she was 9 years old, which was subsequently published in a travel brochure.16The court dismissed her claim for breach of privacy, even though she had not given permission for it to be published in the brochure, and the publication was deeply embarrassing to her. It is not clear from the report, but it seems that because she was in a public place and surrounded by many people at the time, and therefore had no embarrassment about going topless in front of a crowd, she could not have had a reasonable expectation that no-one would have photographed her. Given the apparent convergence of the separate issues of the taking of the photograph and its subsequent, widespread publication, it is questionable as to whether this decision would be followed by a Superior Court.
It is also worth noting the jurisprudence of the ECtHR in Sciacca v Italy [2006], which was quoted in Murray v Newsgroup Newspapers:
“the Court reiterates that the concept of a private life includes elements relating to a person’s right to their picture, and the publication of a photograph falls within the scope of private life. It also has given guidelines regarding the scope of private life and found that there is “a zone of interaction of a person with others, even in a public context, which may fall within the scope of a private life”. In the instant case, the applicant’s status as an ‘ordinary person’ enlarges the zone of interaction which may fall within the scope of private life.”
Summary
The issue of a person’s right to privacy over a photograph in which they appear is complex, and very fact-specific. The degree to which a person’s right to privacy may be infringed by the publication of their photograph will depend on several factors, which include:
a) is the person in a private or public place?
b) how private or sensitive is the information that is being revealed?
c) is the person performing a public function, such as going to a funeral, coming out of court, voting etc, in which case their right to privacy would be lessened?
d) is the person whose information is being revealed a public figure?
e) is there a public interest in the material being revealed by the media?
In this jurisdiction, the Constitutional basis of the right to privacy means that it is a carefully-protected right. The relatively lack of caselaw on the subject, however, means that there remains a lack of clarity as to the exact contours of the right when it comes to a person being photographed, and the degree to which they can prevent their image being published to a wide audience. The decision of the Court of Appeal in Nolan, unfortunately, fails to provide absolute clarity, and it is an area of law that is likely to undergo further development.
Ends.
1 Sports and General Press Agency Ltd v Our Dogs Publishing Co [1916] 2 KB 880, at 884.
2 Campbell v MGN [2004] UKHL 22, at para 73.
3 See https://www.irishexaminer.com/news/arid-20107224.html,https://www.irishtimes.com/news/judge-appalled-at-video-footage-1.532603 and https://www.independent.ie/irish-news/courts/marketing-executive-awarded-16k-after-trinity-ball-revellers-step-into-middle-of-dart-ticket-row-36554981.html
4 Most notably Kennedy & Ors v Ireland & Anor [1987] 1 IR 587, Herrity v Associated Newspapers(Ireland) Ltd [2009] 1 IR 316, Hickey v Sunday Newspapers Ltd [2011] 1 IR 228 and most recently by the Court of Appeal inNolan v Sunday Newspapers Ltd (t/a Sunday World) [2019] IECA 141. In considering of the right to privacy in this jurisdiction, the courts traditionally also consider significant cases from the UK such as Douglas v Hello Ltd[2001] QB 967 and Campbell v MGN Ltd[2004] UKHL 22, as well as major decisions from the European Court of Human Rights such as Von Hannover v Germany.
5 Campbell v MGN [2004] UKHL 22, at para 74.
6 Campbell v MGN [2004] UKHL 22, at para 75.
7 Murray v Newsgroup Newspapers & Ors [201] IEHC 248, at para 73.
8 Von Hannover v Germany[2005] EHRR 1, at para 69.In Perry v UK[2003] ECHR 375, the Strasbourg Court held that “There is a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life … it cannot therefore be excluded that a person’s private life may be concerned in measures effected outside a person’s home or private premises.”
9 Max Mosley v News Group Newspapers[2008] EWHC 1777 (QB).
10 Nolan v Sunday Newspapers Ltd (t/a Sunday World) [2019] IECA 141.
11 Vice-Versa & Anor v Aubry[1998] 1 RCS.
12 Vice-Versa & Anor v Aubry[1998] 1 RCS, para 58.
13 See also Campbell v MGN[2004] UKHL 22, at para 122.
14 Vice-Versa & Anor v Aubry[1998] 1 RCS, para 63.
15 Hickey v Sunday Newspapers [2011] 1 IR 228, at 241.
16https://www.irishtimes.com/news/student-sues-holiday-firm-for-using-photo-of-her-in-brochure-1.430149