Privacy law expert Rosemary Jay of Pinsent Masons, the law firm
behind OUT-LAW.COM, said that the ruling increased the reach of
privacy law, but would not create a US-style image right, which is
a commercial right rather than a privacy-related one.
The case concerned a newborn baby, Anastasios Reklos, who was
put into a sterile unit when born. As a commercial service operated
by the hospital his photograph was taken.
His parents objected and asked for the negatives to be given to
them. The hospital refused, and the Greek courts would not hear the
case.
The European Court of Human Rights (ECHR) has now ruled that the
taking of the photograph without the baby's parents' permission was
a violation of his rights to privacy. The ruling is available only
in French.
"The Court reiterated that the concept of private life was a
broad one which encompassed the right to identity," said an ECHR
press release about the ruling. "It stressed that a person’s image
revealed his or her unique characteristics and constituted one of
the chief attributes of his or her personality."
"The Court added that effective protection of the right to
control one’s image presupposed, in the present circumstances,
obtaining the consent of the person concerned when the picture was
being taken and not just when it came to possible publication," it
said.
The ECHR said that the taking of the photograph breached the
child's right to a private life as guaranteed by Article 8 of the
European Convention on Human Rights, and that the Greek courts had
failed to uphold that right.
Other photography related privacy cases have concerned the
publication of images, but Jay said that it was a new development
that this ruling dealt with the taking of a photograph that was
never published.
"This is new ground, and it is interesting because in a DNA case
in December it was held that holding DNA clearly involved Article
8, that the basis of the Data Protection Directive is that holding
any private information involves your Article 8 rights, so this is
a logical application of that basic rule," said Jay.
Jay said that the Data Protection Directive specifically stated
that part of its purpose was to protect rights enshrined in Article
8 of the Convention.
"One of the things we have seen in the last couple of years in
cases brought before the ECHR on Article 8 is that they are
gradually covering more ground, and overlaying ground previously
covered by data protection cases," she said.
The ECHR does not directly change UK law but courts will take
its rulings into account if asked to judge similar cases. Public
bodies must also take account of its rulings when formulating their
policies and practices, Jay said.
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