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European court expands image privacy rights

The European Court of Human Rights has expanded the reach of privacy rights by ruling that a photographer breached someone's privacy just by taking a photograph, even though that photograph was never published.04 Feb 2009

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.