Legality of the act of photographing without publishing

happyuser123

Hello all

I have a hypothetical that I think has been asked in the past, but people tend to reply in generalities without providing any case-law/legislative basis

My question is:

- is the isolated act of photographing or filming a person (without publishing in any form) illegal in Ireland? My question relates to both images and recordings taken in private (my understanding is that it's fine in public locations, the ECHR and the Von Hannover case aside).

Also, further, what if the person in question is a minor and the image relates to intimate activities (i.e. covert filming of the minor changing clothes) but again is not published?

All I think think of on the first point is the constitutional right to privacy, and the Cogley v RTE case etc, and Article 8 ECHR but that is so general. I know there is the debate around the privacy bill, but at present surely there is something more specific covering such a situation? It doesn't seem to me to come within data protection law as there is no "processing". And even the facts of Cogley are quite different, there there had been publishing

As regards the situation where the person is a minor, it seems that such a situation might come within the Child Trafficking and Pornography Act 1998 as it could be considered to be the production of child pornography under section 5.(a). But even then it would only come within the definition of "child pornography" if its "dominant characteristic is the depiction for a sexual purpose of the genital or anal region of a child".

And as far as I can tell, generally, it is not "more" prohibited to take normal photos of a child than an adult

Surely there are more specific authorities on these issues than a general constitutional right to privacy in legislation or case-law? It seems to be quite a lacuna, particularly when the location is private. If someone could point me to them I'd appreciate it a lot!

Corkbah

in Ireland .... as it stands !

if you are in a public place or viewable from a public place (without a reasonable expectation of privacy) ... you can be photographed .... what happens the image after that is where the legalities start.

image cannot be used for commercial purposes without a model release form but can be used for editorial purposes (in a newspaper) if there is a public interest.

[personal opinion] In the event that you described above (images of a child changing clothes) best way to do it is report to the gardai and have the person charged with child porn (no-one should photograph or video a child in a state of undress without permission of parent/guardian) [/personal opinion]

happyuser123

Thanks Corkbah. the thing is I'm more trying to find info on where it isn't used for commercial purposes - i.e. if just some random person does it, and so am more trying to see would the act of taking the photograph/film in itself be illegal.

To that end I've been looking into, as you pointed out, the question of in what circumstances an individual might have a right to privacy in a public place etc. But I've found it very difficult to find any material on when an individual may be taken to have a "reasonable expectation of privacy" though. I know the Irish Press Council use it as a test, and the ECHR and Courts from other jurisdictions have a lot to say about it, but I haven't found any Irish judgment where people have defined it or set out any criteria etc.

It all seems quite vague! I think legislation would be welcome, though it seems a lot of controversy surrounds the new bill

Corkbah

at the moment its perfectly legal to take images of a member of the public in a public place ...if however as you say ...this involves a minor in a state of undress, contact the Gardai asap....give them as much information as possible description of person, vehicle registration etc and leave it to them.

Best of my knowledge there have been no court judgements at the moment involving the reasonable expectation of privacy - most of these cases do not make it to court and often settle on the steps of the courts.

Tom Young

Really?!

Herrity, Hickey ... McGee ... Plenty

Read from para 54. onwards: http://courts.ie/judgments.nsf/6681dee4565ecf2c80256e7e0052005b/81d79422a72695208025789d003cc166?OpenDocument&Highlight=0,Hedigan,Newspaper%20

Corkbah

Tom Young wrote: »

Really?!

Herrity, Hickey ... McGee ... Plenty

Read from para 54. onwards: http://courts.ie/judgments.nsf/6681dee4565ecf2c80256e7e0052005b/81d79422a72695208025789d003cc166?OpenDocument&Highlight=0,Hedigan,Newspaper%20

my post says "best of my knowledge" ... I'm not saying there isn't any, just none that I know of !

you could have mentioned your post in plenty of time before mine if you wanted ...the OP asked for advice and my advice was to contact the Gardai and give them as much info as possible and leave it with them.

Feel free to give the OP your advice.

source

http://www.digitalrights.ie/2006/05/09/photographers-rights/

Not legislation or case law, but a good resource of what is allowed.

Corkbah

source wrote: »

http://www.digitalrights.ie/2006/05/09/photographers-rights/

Not legislation or case law, but a good resource of what is allowed.

only issue I have with that is that it was published in 2006 ... couple of court cases as outlined above which have subsequently occurred

happyuser123

Ok

Thanks everyone for your input, very helpful