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Photographs in public.

  • #1
    Moderators, Recreation & Hobbies Moderators, Science, Health & Environment Moderators, Technology & Internet Moderators Posts: 82,993 mod Capt'n Midnight 1996 so may be out of date
    Sections 21, 22
    The photographs had been taken by a private investigator on behalf of the local authority. Some of them were of the plaintiff in the street, but others were of her in the living room of her own home. The Court took the view that, provided no trespass was committed in the taking of the photographs, they were:

    “... simply a record, a photographic record of what anyone walking down the street presumably could observe and that is no violation of the right to privacy or, it is a violation of the right of privacy no different from the covert surveillance of the same person in the street because if people elect to walk to and fro in their drawing room, without the curtains drawn, then, of course, they are visible from the street and anybody who would pass and glance in their direction is not in any sensible way violating their privacy.

    But if somebody covertly photographs them, whilst that is obviously a distasteful operation, viewed from the legal point of view, it is no different than if they are equally covertly photographed while out in the public gaze because essentially in most cases they are in the public gaze ...”
    bottom of section 4.20
    By analogy with this case, if a photograph were to be taken of a person and used without that person's consent for advertising purposes, or perhaps for any purpose, in some circumstances such publication might be defamatory of the person.


    On the basis of the above case law, a person who is subject to surveillance and who being aware of the surveillance apprehends harm to their person (or possibly property) may, in the exercise of the power of arrest for breach of the peace, take action against the observer to avoid the harm. Where however the person is unaware of the surveillance, she or he will not be in a position to take such action. Similarly, where a third person sees another engaged in surveillance and apprehends harm to the subject of the surveillance, that person may arrest the observer in order to prevent the harm. In such cases the observer may also be subsequently bound over by the District Court to keep the peace. As understood by the English courts, the power of arrest for breach of the peace is concerned with the protection of persons and property. It is not concerned with counteracting an affront to human dignity or an invasion of privacy as such. The judges in the Scottish “peeping Tom” case, however, interpreted the concept of a breach of the peace more liberally. In their view the offence was designed not only to protect public order but also decorum and the modesty of women20; and in the latter instances it is more directly concerned with the protection of privacy as such.