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When does street photography trigger privacy rights?

Photographers and journalists of all kinds need to keep abreast of the fast-developing law of intrusive photography.

A key issue is whether photographs can be taken of people in public places without their consent, without incurring liability for infringement of privacy.

Recent court rulings have drawn a distinction between merely taking photographs, retaining them, and publishing them.

An important preliminary question is whether Article 8(1) of the European Convention on Human Rights is “engaged” or not. If it isn’t, a photographer can happily snap away with impunity.

The case of Wood v Commissioner of Police for the Metropolis has provided the latest guidance. The claimant, a media co-ordinator for the Campaign Against the Arms Trade, objected to being photographed in a public street by police as he left a company’s AGM.

The Court of Appeal said the photography did “engage” the right to privacy under Art. 8(1) of the European Convention on Human Rights and was unlawful.

Lord Justice Laws said it was clear individuals still have no right to prevent another person politely merely taking their photograph in public.

He said: “It is no surprise that the mere taking of someone’s photograph in a public street has been consistently held to be no interference with privacy. The snapping of the shutter of itself breaches no rights, unless something more is added. Accordingly I conclude that the bare act of taking the pictures, by whoever done, is not of itself capable of engaging Article 8(1) unless there are aggravating circumstances.”

So far, so good, from the media perspective.

However, he added: “I would certainly acknowledge that the circumstances in which a photograph is taken in a public place may of themselves turn the event into one in which Article 8 is not merely engaged but grossly violated.

“The act of taking the picture, or more likely pictures, may be intrusive or even violent, conducted by means of hot pursuit, face-to-face confrontation, pushing, shoving, bright lights, barging into the affected person’s home.

“The subject of the photographer’s interest – in the case I am contemplating, there will usually be a bevy of picture-takers – may be seriously harassed and perhaps assaulted. He or she may certainly feel frightened and distressed.

“Conduct of this kind is simply brutal…It would plainly violate Article 8(1), and I can see no public interest justification for it under Article 8(2).”

He decided the nature of the surveillance photography and the retention of images by police was “a good deal more than the snapping of the shutter” and Article 8(1) was “engaged.” The other two judges, Lord Collins and Lord Justice Dyson, agreed and said the police had no valid public interest argument to justify their actions.

Add to this mix the fact that European judges decided in February this year that the taking and retention of photographs of a newborn baby boy, Anastasios Reklos, in a Greek hospital without his parents’ consent, as part of a commercial photography service operated by the hospital, infringed the child’s privacy rights even though no photograph was published.

The law remains nuanced and fact-sensitive. It should be remembered that Wood involved police, not media, photography and consequently the Article 10 right to freedom of expression was not in play. In addition, the Reklos photography was not taken in a genuinely public place.

So, what tentative conclusions can be drawn?

The mere taking of photographs, even by press photographers, of people in public places is unlikely to engage Article 8(1). But “mere” taking is hard to achieve in reality.

The taking and retention of such photographs by journalists for the purpose of future publication may well engage Article 8(1), particularly where children are concerned, requiring a public interest justification under Article 8(2) or Article 10 to be established if any subsequent privacy claim is to be defeated.

And publication of such photographs is even more likely to engage Article 8(1), requiring a public interest justification in the event of a claim.

Non-consensual street press photography, which inherently involves the three-stage process of taking, retention and publication, could increasingly become a legal battleground where the media are required to furnish cogent public interest arguments under Article 8(2) and Article 10 in order to see off privacy claims rather than simply arguing such photography is wholly unobjectionable.

And finally…does the decision in Wood mark the end of mass scrums of photographers outside someone’s home? Is this the end of the paparazzi? The answer to both questions is ‘no,’ if only because the right to freedom of expression was not argued in Wood.

But is English law edging ever closer to a ban on current photographers’ behaviour and practices? The answer, for better or worse, seems to be a definite ‘yes.’

  • Solicitor Nigel Hanson is a member of Foot Anstey’s media team. To contact Nigel telephone 0800 0731 411 or e-mail [email protected] or visit www.footanstey.com.
  • Comments

    Kevin Hunt (05/06/2009 16:12:58)
    This is seriously bad news. On the one hand, it is quite right that the police should have no right to intrude upon a private individual’s innocent movements – without genuine due cause – but, on the other, we are in danger of ‘criminalising’ every amateur photographer and tourist. Like so many other unwarranted intrusions into our everyday activities, it seems we have lost a grip on reasonableness and commonsense. It is time, as with the debacle over our MPs, that that public – and the judges – called for a stop to this senseless madness.