A privacy expert said that in the UK only some photographs taken
in public are subject to legal controls.
"I was absolutely staggered when I turned on the TV to see
myself in a film about fat people," said Knezic, who is suing TV
station HTV for £10,000. "I want to show that attacks on human
dignity like this cannot be tolerated," she said.
In the UK, it is not clear whether or not the Data Protection
Act would offer protection in these circumstances, according to
Rosemary Jay, a privacy law expert with Pinsent Masons, the law
firm behind OUT-LAW.COM.
"There is a question over whether this footage would be personal
data in the hands of the media in the UK, without any name or other
particulars," said Jay. "I would say that as she could be
'identified' in the sense that it is clear that she can be
recognised as a unique human it should be regarded as persona data
but as it would not be possible from the footage to go to her house
and find her a UK court might decide that the footage alone was not
personal data."
Jay said that in other EU member states, the outcome could be
different. Although each country has implemented the same Data
Protection Directive, they did so in different ways. The definition
of 'personal data' in the Directive refers to "an identified or
identifiable natural person". The UK's Data Protection Act does not
refer to identifiable people in its definition – it only refers to
individuals who "can be identified from information in the
possession of the controller or likely to come into his
possession".
"A UK court might decide that the photograph alone was not
personal data," said Jay.
Even if the footage deemed to be personal data, the Act contains
a special exemption for journalism which may allow its use if that
was deemed to be in the public interest. But if its use caused
distress, the Act allows the subject to claim damages.
Jay pointed to a case in Hong Kong, which has a similar law. A
woman was photographed without her knowledge and featured in a
magazine article. She was not named but the woman's dress sense was
ridiculed and the photograph was captioned 'Japanese Mushroom
Head'. She complained to the Hong Kong privacy commissioner.
However, the Court of Appeal ruled that the publisher had not
collected personal data. "What is crucial here is the complainant's
anonymity and the irrelevance of her identity so far as the
photographer, the reporter and Eastweek were concerned," wrote a
judge in the case.
If a court in the UK considered the invasion of privacy to be
sufficiently serious, it could rule that human rights were
breached. But it is not clear in the circumstances of the obesity
documentary that there is such an invasion, Jay said.
British courts have considered various privacy complaints, most
of them involving celebrities.
Supermodel Naomi Campbell won a landmark ruling which found that
pictures of her leaving a Narcotics Anonymous meeting infringed her
human rights. The House of Lords acknowledged in that case, though,
that if the photographer had merely caught her going "out to the
shops for a bottle of milk" she would not have had a claim. It
acknowledged that readers would be interested in how Campbell may
look when doing something so ordinary.
Non-celebrities may enjoy greater protection than celebrities,
though.
The European Court of Human Rights has ruled that disclosure of
CCTV footage of a man attempting suicide on a street was a
disproportionate and unjustified interference in his private life.
Still images of the man were sold by the local council to the
media. The court considered it significant that his actions "were
seen to an extent which far exceeded any exposure to a passer-by or
to security observation and to a degree surpassing that which he
could possibly have foreseen." He was recognised by people who knew
him, including family members, friends and colleagues.
More recently, author JK Rowling won a case over a photograph of
her infant son.
Sir Anthony Clarke wrote in that case: "As we see it, the
question whether there is a reasonable expectation of privacy is a
broad one, which takes account of all the circumstances of the
case. They include the attributes of the claimant, the nature of
the activity in which the claimant was engaged, the place at which
it was happening, the nature and purpose of the intrusion, the
absence of consent and whether it was known or could be inferred,
the effect on the claimant and the circumstances in which and the
purposes for which the information came into the hands of the
publisher."
The result of applying that test to the obesity documentary is
difficult to predict, Jay said. She pointed out that individuals
enjoy other protections, though.
Broadcasters in the UK are expected to follow an Ofcom Code and
they can be fined for non-compliance. An Ofcom spokesman told
OUT-LAW, “It is acceptable for broadcasters to film in a general
manner in a public place providing the footage is brief, incidental
and an individual is not engaged in a personal or private
activity.”
He said that in circumstances such as in the obesity
documentary, it may be sensible for the broadcaster to pixellate
the faces of people being filmed if there was no consent.
Newspapers apply similar rules. The Press Complaints Commission
told OUT-LAW that the privacy protections in its Code of Practice
may apply when a photograph is used in a way that distresses a
member of the public. Pixellation was recommended.
The PCC Code states: "Everyone is entitled to respect for his or
her private and family life, home, health and correspondence,
including digital communications. Editors will be expected to
justify intrusions into any individual's private life without
consent."
That rule was the subject of a complaint by Allegra Versace,
daughter of designer Donatella Versace. Now! magazine printed a
photograph of her which was taken while she was shopping in London.
She looked emaciated and Now! speculated that she had an eating
disorder. The magazine published an apology for the intrusion into
her private life and accepted that it should not have speculated
about her health.
Pinsent Masons and Amberhawk Training are holding an Update
session on 26th January in London where up to date data protection
topics are the agenda. If you are interested in this event, please
email chris.pounder@amberhawk.com
for a brochure.
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