Doonbeg Lodge using photos taken without consent

MajesticDonkey

http://www.independent.ie/irish-news/courts/father-sues-doonbeg-lodge-after-his-three-young-kids-appeared-on-promotional-brochures-without-consent-35430940.html

TLDR: Hotel uses photos of children in promo brochure, children's father sees brochure, says photos were taken without consent, sues hotel and wins, due to a "breach of privacy".

Thoughts on this? Does the fact that they were children matter?

This seems to be such a grey area due to a lack of case law. Data protection law seems to be what won this case, given that collection of personal information, including photographs, cannot be done without consent. But if this case went further, would we have seen other laws tested?

Thoie

When taking photographs in public places (and hotel grounds would be considered a public place), I didn't think there was an expectation of privacy generally. If I'm just taking some holiday snapshots, I don't have to ask the permission of anyone who happens to be in the picture.

Usually if you're going to use those images for commercial purposes, such as advertising, you would get a model release form, and that's the time for the subject (or their parents, in this instance) to deny the use, agree to the use or ask for payment.

I suppose it depends on how recognisable the children were - if you could clearly see their faces then permission should have been asked before using it in promotional material. If they were just some coloured dots in the background, that the father happened to recognise due to, say, distinctive coloured coats, then I don't think permission would have been necessary.

Data protection and the taking of photos doesn't quite fit here. If I take a photo of Grafton St, I don't think that makes me a Data Controller, even though I've now got lots of people's photos on my computer.

coylemj

The award was €5,000 for each of the three children but only District Court costs (in a case in the Circuit Court). What effect would the costs award have on the overall award i.e. how much would they lose by only getting DC costs?

Theboinkmaster

MajesticDonkey wrote: »

http://www.independent.ie/irish-news/courts/father-sues-doonbeg-lodge-after-his-three-young-kids-appeared-on-promotional-brochures-without-consent-35430940.html

TLDR: Hotel uses photos of children in promo brochure, children's father sees brochure, says photos were taken without consent, sues hotel and wins, due to a "breach of privacy".

Thoughts on this? Does the fact that they were children matter?

This seems to be such a grey area due to a lack of case law. Data protection law seems to be what won this case, given that collection of personal information, including photographs, cannot be done without consent. But if this case went further, would we have seen other laws tested?

TBH I'd be fairly pissed off if pictures of my child were used like that.

Parents are naturally protective of their children and many don't even like relatives putting pictures of their kids up on facebook etc. (including me).

coylemj

The twin boys were aged two and the girl was five at the time the photos were taken in 2011. The father noticed the photos being used in 2013, he registered a complaint following which the brochure was withdrawn and the photos taken down from the website.

Now I'm guessing that the family doesn't live anywhere near the hotel and nobody looking at the brochure would have the slightest clue as to the identity of the children so it's not like they were exposed to any danger by having their images published in promotional material.

Nonetheless, four years later he's in the Circuit Court looking for damages for 'breach of privacy', presumably he had a number of the order of 50K or so per child in mind when he decided to go for the Circuit Court. How are children of that age affected by 'breach of privacy' and deserving of a monetary award? They wouldn't even understand the term, let alone have any concept of the principle behind it.

MajesticDonkey

Thoie wrote: »

When taking photographs in public places (and hotel grounds would be considered a public place), I didn't think there was an expectation of privacy generally. If I'm just taking some holiday snapshots, I don't have to ask the permission of anyone who happens to be in the picture.

Surely, legally, hotel grounds would be considered private, no?

For example: when you go to a match in Croke Park (private property), it's a condition of entry that you give consent for your photograph to be taken and used commercially. Is it a requirement, legally, to tell the person this?

Victor

MajesticDonkey wrote: »

Surely, legally, hotel grounds would be considered private, no?

There are different standards of 'private' and 'public', depending on context. While the hotel might be privately owned, it is open to the public and expectations of privacy in the public areas of the hotel would be low. Expectations of privacy in a hotel room, toilet, etc. would be high.

For example: when you go to a match in Croke Park (private property), it's a condition of entry that you give consent for your photograph to be taken and used commercially. Is it a requirement, legally, to tell the person this?

They are doing this for a number of reasons, primarily so they don't have to pay people modelling fees. So if Georgia Salpa goes to the All Ireland and gets snapped by a photographer, who sells it to a 'newspaper', she won't be getting paid for it.

GM228

This is from an old e-mail I got from the DPC when researching the subject of photography and data protection:-

The issue in relation to the use of photographs by an individual in a personal capacity would not give rise to a data protection issue as the processing of personal data kept by an individual and concerned solely with the management of his/her personal, family or household affairs or kept by an individual for recreational purposes is exempt from the provisions of the Acts. This exemption would generally apply to the use of photos/video footage by another individual in their personal capacity.

If the photo is being taken by an individual on behalf an organisation, the person being photographed should be informed before the photo is taken and any objection given by the individual should be respected.

Thoie

MajesticDonkey wrote: »

Surely, legally, hotel grounds would be considered private, no?

For example: when you go to a match in Croke Park (private property), it's a condition of entry that you give consent for your photograph to be taken and used commercially. Is it a requirement, legally, to tell the person this?

I don't know, but the expectation of privacy doesn't necessarily mean private property. For example, a restaurant is private property, but I can't expect that no-one can take my photo there. I expect privacy in my hotel bedroom, but again I can't prevent anyone taking my photo in the hallway or lobby.

The Croke Park notice is because they might use your photo commercially (in advertising, for example), and it means they don't have to get 80,000 model release forms signed on the off chance. They've made it a condition of entry - if you don't like the idea, you can choose not to enter.

In the hotel situation, taking the children's photo in the playground (where there's no expectation of privacy) is, imo, perfectly OK. What wasn't OK was then using those photos for advertising without permission, and possibly a fee.

A few years ago I took a lovely picture of some kids in Dublin Zoo. Out of politeness I then approached the parents, showed them the photo I'd taken and offered to email them a copy. I didn't have to do that - there is no expectation of privacy in Dublin Zoo, I'm just a lovely person. However I didn't ask for permission to sell or otherwise make money from that photo (as I had no intention of doing that). If someone offered me a million euro to use that photo commercially tomorrow, I couldn't accept, as I don't have the parents permission for that. I could (but haven't and won't) put the photo up on social media, as I'm not doing that commercially - I could stick it up on Facebook in a "My trip to the zoo" album.

I'm surprised that the settlement was for "breach of privacy", and not for "using the photo commercially without permission".

hullaballoo

Very unusual language, "any objection...should be respected."

So, as an organisation, I can tell someone I'm going to photograph them and they say, "no, don't, I don't want my image used by you" and I tell them I respect their objections but photograph them anyway, I'm fine from the DPC's perspective?

Thoie

hullaballoo wrote: »

Very unusual language, "any objection...should be respected."

So, as an organisation, I can tell someone I'm going to photograph them and they say, "no, don't, I don't want my image used by you" and I tell them I respect their objections but photograph them anyway, I'm fine from the DPC's perspective?

I read "respected" as "adhered to" in that case. If they say "I don't want my image used by you", respecting their objection means "not using their photo for any purpose". You could potentially take their photo anyway, but it seems like a waste of time if your plan was to take photos for use by the organisation. If you're working and getting paid by usable photos, taking their photo anyway just causes more work for you with no gain - you'll have to spend time carefully putting it to one side and not getting it mixed in with all the other photos that you can get paid for.

hullaballoo

I'm just being pedantic but that's not the kind of language that ought to be used when telling someone that they must not do something on pain of sanction.

GM228

hullaballoo wrote: »

I'm just being pedantic but that's not the kind of language that ought to be used when telling someone that they must not do something on pain of sanction.

Obviously sent from someone in an office at the DPC who isn't used to the level of legalese we that we are perhaps, but I'd agree with Thoie in the interpretation, respect being synonymous with abide bye for example.

MajesticDonkey

Thoie wrote: »

I don't know, but the expectation of privacy doesn't necessarily mean private property. For example, a restaurant is private property, but I can't expect that no-one can take my photo there. I expect privacy in my hotel bedroom, but again I can't prevent anyone taking my photo in the hallway or lobby.

But as mentioned in other posts, the issue here is the collection of people's personal information without their consent, which is a data protection issue - it doesn't seem to matter whether it's in public or in private. It doesn't seem to even matter if it's for personal or commercial reasons - the person must always given their consent.

Thoie wrote: »

I'm surprised that the settlement was for "breach of privacy", and not for "using the photo commercially without permission".

That too is my main issue with the judgement.

Thoie

MajesticDonkey wrote: »

But as mentioned in other posts, the issue here is the collection of people's personal information without their consent, which is a data protection issue - it doesn't seem to matter whether it's in public or in private. It doesn't seem to even matter if it's for personal or commercial reasons - the person must always given their consent.

As per the email GM228 quoted, taking photos doesn't automatically make you a data controller. If the hotel sent an employee out with the brief to "take publicity photos for the hotel", then yes, they should have got permission.

If someone just wandered by, took a photo, and then later the hotel came across it and used it, the original photographer wouldn't necessarily be considered a data controller, wouldn't have needed to ask permission, but by the same token the hotel shouldn't have used it for commercial purposes.

Say I'm just taking some snapshots of the hotel I stayed in, and you happen to be in one of the shots, I don't need your permission. I could, if I wanted, post that up on the hotel's Facebook page saying "had a fab time in your lovely hotel, thanks". As far as I can see though, the hotel can't then take that photo and make it their cover shot (or whatever it's called) for their Facebook page, as that's commercial. In that instance they'd need to pay me for the use of the photo, and I couldn't accept payment without your permission. You might just grant me permission, or you might also want payment.

coylemj

Thoie wrote: »

I'm surprised that the settlement was for "breach of privacy", and not for "using the photo commercially without permission".

If they went after the commercial aspect then surely all they'd be entitled to claim would be the fee that a few unknown two and five year old kids would get for a modelling assignment i.e. frolicking around a playground for 15 minutes - €50 each?

Unless you're famous and entitled to charge more, I'd say breach of privacy is the only way to get a decent award, however undeserving it may be.

Discodog

Is there an element where, because the photos are in a brochure, it implies that the family are endorsing the hotel ? For example you could take a photo of a celebrity in a hotel restaurant & put it in publicity material implying that they endorse it.

GM228

I think a huge problem with these issues is that Ireland has no proper privacy laws per se, but the ECHR in Von Hannover v Germany [2004] 59320/00 held that photography of someone in the course of everyday life such as out walking, in a restaurant or on holiday (all potentially in public places) was someones private life and can be an invasion of privacy.

Whilst our courts are not bound by this, it should be judicially noted.

In the present case there is no doubt that the publication by various German magazines of photos of the applicant in her daily life either on her own or with other people falls within the scope of her private life.

The Court notes at the outset that in the present case the photos of the applicant in the various German magazines show her in scenes from her daily life, thus involving activities of a purely private nature such as engaging in sport, out walking, leaving a restaurant or on holiday.

MajesticDonkey

GM228 wrote: »

photography of someone in the course of everyday life such as out walking, in a restaurant or on holiday (all potentially in public places) was someones private life and can be an invasion of privacy.

Am I alone in thinking this is absolute madness, even if it's just a "can"?

GM228

coylemj wrote: »

How are children of that age affected by 'breach of privacy' and deserving of a monetary award? They wouldn't even understand the term, let alone have any concept of the principle behind it.

What would being a child and understanding of a right have to do with it though?

Not understanding or having a concept of privacy or any other right, protection or freedom for that matter would not invalidate them, understanding and concept does not qualify rights, freedoms and protections.

What if the plaintiff had a dependent adult with say a severe mental disability who also had no understanding or concept, would you still ask the same question then?

coylemj

GM228 wrote: »

Not understanding or having a concept of privacy or any other right, protection or freedom for that matter would not invalidate them, understanding and concept does not qualify rights, freedoms and protections.

If you're too young to understand the concept of privacy, how can you justify a claim for cash in lieu of a breach of an abstract concept on which you place no value? Where is the damage that requires cash as a redress?

This is about proportionality, €5,000 is a crazy amount of money considering the children have not the slightest notion that they suffered any wrong.

GM228 wrote: »

What if the plaintiff had a dependent adult with say a severe mental disability who also had no understanding or concept, would you still make the same comment then?

Red herring but can't see any lawyer taking such a case, would be laughed out of court.

GM228

coylemj wrote: »

If you're too young to understand the concept of privacy, how can you justify a claim for cash in lieu of a breach of an abstract concept on which you place no value? Where is the damage that requires cash as a redress?

This is about proportionality, €5,000 is a crazy amount of money considering the children have not the slightest notion that they suffered any wrong.



Red herring but can't see any lawyer taking such a case, would be laughed out of court.

It's not a red herring, the principles are the same, it would seem you are saying there should be no redress for a breach of ones rights if they don't understand those rights or the consequences of a breach in the first place, no?

An award should represent actual damage done, not ones understanding of the damage done, the father took the case on behalf of his children as in his opinion there was damage done, and the court agreed. If awards were handed out solely based on a victims understanding of the damage done to them I could see awards jumping higher than they usually are as many often incorrectly genuinely believe nobody has suffered any worse than themselves.

Using the same arguement should people not be able to sue on behalf of someone who is involved in a major accident and becomes brain damaged where the damage is so great that they no longer have the capacity to understand the damage done to them?

coylemj wrote: »

can't see any lawyer taking such a case, would be laughed out of court.

You think a case involving a breach of someones rights who had a mental disability and didn't understand would be laughed out of court? Seriously, or have I taken you up wrong?

dr.fuzzenstein

This could have interesting ramifications. Any picture taken at a tourist attraction or hotel would have to be entirely populated by paid models, or the people who happen to be there informed beforehand and maybe even paid a small fee.
Any picture that has people in it that is used in a brochure or website might have to be taken down perhaps?

coylemj

GM228 wrote: »

It's not a red herring, the principles are the same, it would seem you are saying there should be no redress for a breach of ones rights if they don't understand those rights or the consequences of a breach in the first place, no?

Yes. If a one month old baby ends up in a promotional photo or video without it's parent's permission, should the same baby get monetary damages for 'breach of privacy'? How much?

You ignored my mention of 'proportionality' so I am going to reciprocate and ignore your tasteless invocation of people with acquired brain injury or congenital mental disability.

Thoie

dr.fuzzenstein wrote: »

This could have interesting ramifications. Any picture taken at a tourist attraction or hotel would have to be entirely populated by paid models, or the people who happen to be there informed beforehand and maybe even paid a small fee.
Any picture that has people in it that is used in a brochure or website might have to be taken down perhaps?

As far as I was aware that's already the situation - anyone in a promotional picture should have given their permission for their image to be used that way (with some exceptions for "editorial" works). Whether the person wants to charge or not is up to them.

If I upload photos to stock sites, if they contain people I have to include the model release forms with them - I can't just photograph a bunch of people and sell the photos.

GM228

coylemj wrote: »

Yes. If a one month old baby ends up in a promotional photo or video without it's parent's permission, should the same baby get monetary damages for 'breach of privacy'?

Why not? A child is still entitled to privacy, the fact they are aware of that right or not is irrelevant.

coylemj wrote: »

How much?

It's impossible to answer such a question, awards of damages need a lot more details to be taken into consideration than simply saying a video was taken without permission, a much bigger picture (pardon the pun) of events and facts is required.

coylemj wrote: »

You ignored my mention of 'proportionality'

Really, you based your proportionality arguement on the fact that a child has "not the slightest notion that they suffered any wrong", to which I replied:-

GM228 wrote: »

An award should represent actual damage done, not ones understanding of the damage done

You seem to forget that damages don't just take into account the past events, but also the likely future and what effects if any there may be as a result of a breach, a breach of privacy may not effect a child now, but what about in the future when they do understand and the possability that video/photograph was copied when it was in the public domain and used again at some point in the future? Courts don't just decide damages based on the past and the here and now.

coylemj wrote: »

tasteless invocation of people with acquired brain injury or congenital mental disability.

It's not meant to be tasteless, it's a genuine question based on your same reasoning which is it would seem is that there should be no redress for a breach of ones rights if they don't understand those rights or the consequences of a breach in the first place, that applies to a child, someone with mental disabilities or anyone for whatever reason dosn't know of or understand their rights.

coylemj

GM228 wrote: »

You seem to forget that damages don't just take into account the past events, but also the likely future and what effects if any there may be as a result of a breach, a breach of privacy may not effect affect a child now, but what about in the future when they do understand and the possability that video/photograph was copied when it was in the public domain and used again at some point in the future? Courts don't just decide damages based on the past and the here and now.

That is typical of the fiction that lawyers use to inflate claims. There are children up and down the country who get paid for modelling assignments, usually for magazine adverts. Their parents don't seem to have those concerns and are happy to accept cash for their troubles.

Which is the point I was making about proportionality - those kids in Doonbeg don't deserve to be awarded more than what they would have been paid had the hotel done thing by the book and engaged and paid them them as models.

GM228

coylemj wrote: »

That is typical of the fiction that lawyers use to inflate claims.

Damages to date and expected future damages is pretty standard stuff, courts regularly award based on such, they obviously agree future is more than just fiction.

coylemj wrote: »

There are children up and down the country who get paid for modelling assignments, usually for magazine adverts. Their parents don't seem to have those concerns and are happy to accept cash for their troubles.

There's a huge difference between someone consenting to something and those who don't. The kids could always try sue their parents in the future if they believe their rights have been breached??

coylemj wrote: »

Which is the point I was making about proportionality - those kids in Doonbeg don't deserve to be awarded more than what they would have been paid had the hotel done thing by the book and engaged and paid them them as models.

But the issue isn't about being paid as if you had consented, it's about a breach of a right. People who agree and get paid give up that right and that's what is key.

the_syco

dr.fuzzenstein wrote: »

This could have interesting ramifications. Any picture taken at a tourist attraction or hotel would have to be entirely populated by paid models, or the people who happen to be there informed beforehand and maybe even paid a small fee.
Any picture that has people in it that is used in a brochure or website might have to be taken down perhaps?

If person can be identified, yes.

You may see some photos of people having fun at a resort, with everyone else out of focus, or not facing the camera; ie; not identifiable. Most are heavily cropped, though.

coylemj wrote: »

Which is the point I was making about proportionality - those kids in Doonbeg don't deserve to be awarded more than what they would have been paid had the hotel done thing by the book and engaged and paid them them as models.

The difference is between being asked, and not being asked.

Victor

coylemj wrote: »

Which is the point I was making about proportionality - those kids in Doonbeg don't deserve to be awarded more than what they would have been paid had the hotel done thing by the book and engaged and paid them them as models.

Of course they should be awarded more. If you only got a standard modelling fee after having to sue for it, nobody would pay models at all.

coylemj

Victor wrote: »

Of course they should be awarded more. If you only got a standard modelling fee after having to sue for it, nobody would pay models at all.

+1 it did occur to me after posting that there would need to be a punitive element to the award for that reason so I accept your point.

But as the Doonbeg publicity material was pulled as soon as the father objected, I really fail to see much merit in the case. If they only got District Court fees then I'm guessing that it means that their solicitor would be paid but not their counsel so his/her fees would have to come out of the €15,000 award?

3DataModem

Victor wrote: »

There are different standards of 'private' and 'public', depending on context. While the hotel might be privately owned, it is open to the public and expectations of privacy in the public areas of the hotel would be low. Expectations of privacy in a hotel room, toilet, etc. would be high.

They are doing this for a number of reasons, primarily so they don't have to pay people modelling fees. So if Georgia Salpa goes to the All Ireland and gets snapped by a photographer, who sells it to a 'newspaper', she won't be getting paid for it.

But I'm pretty sure they couldn't use it on the cover of the following weeks programme without consequence?

coylemj

3DataModem wrote: »

But I'm pretty sure they couldn't use it on the cover of the following weeks programme without consequence?

Yes they could. As mentioned earlier, attendance at a public sports event or concert for which you pay to enter typically carries the condition (it's always printed on the back of the ticket) that you may be photographed and your image can be used by the promoters in future publicity.

Effectively you surrender all commercial rights to the use of your image. Probably explains why most celebs only attend big concerts if they get VIP backstage hospitality.