Man Photographed in Court Building and Photo Published Online ?

Electronic Writer

Irishphotodesk wrote: »

As regards the OP and his assertion that privacy has been breached, it would appear he could be the type of person who could very well be your test case if they were to bring the matter further, it might help clarify the situation for members of the public, the legal profession and the media in Ireland.

I doubt I've asserted that privacy has been breached unless I've relied on the opinion or facts given by someone else with this knowledge in the thread. Tell me where and I'll give thanks.



I also could not bring the matter further as I am not the person who was photographed leaving the court building. My interest is because I was looking at the newspaper website and by the lottery of life happened to see a person I know.

Irishphotodesk

Electronic Writer wrote: »

I doubt I've asserted that privacy has been breached unless I've relied on the opinion or facts given by someone else with this knowledge in the thread. Tell me where and I'll give thanks.



I also could not bring the matter further as I am not the person who was photographed leaving the court building. My interest is because I was looking at the newspaper website and by the lottery of life happened to see a person I know.

Apologies. You asked the question , which in my opinion had been answered and then technical points and side points were raised, feel free to tell the person you know that the European courts deem article 8 more important than article10 in the context of a convicted Norwegian person and the breach of a photography ban of people involved in court cases in that country was not overturned.

And let them make their decision on whether or not to pursue the matter.

It has been an interesting discussion but at this point we are going in circles, one person - with experience in the area of European courts - cites one case and admits that each case is different but uses this to make a point that members of the public can claim privacy in public places (am I wrong with this?)

If you believe rights were breached, tell the person to take a case and maybe we can all learn what the courts think - given the circumstances of this person's case.

Peregrinus

It’s relevant that there was a law in Norway banning the taking of the photographs, so the sequence of events was: Photographer is penalised under Norwegian law -> photographer challenges law in the ECHR -> photographer loses.

How would this map on to the Irish situation that we are discussing here? Let’s assume that the taking of photographs by a photographer outside the court building is not banned by any court rule or court order. Is there any law which would ban or restrict the taking of the photograph? Well, GM228 suggests yes, GDPR has this effect. I think this gives rise to two alternative scenarios:

Option 1: photographer is penalised in some way under GDPR -> photographer challenges this in ECHR. This looks a bit like the Norway case, except that the law being challenged is a different law, and so the considerations in balancing right to privacy versus right to free speech may not play out the same way, so the photographer won’t necessarily lose. But he might lose.

Option 2: Irish authorities disagree with GM228 and take the view that GDPR does not prohibit the taking of this photograph, or for some other reason decline to take action against the photographer. Aggrieved person in the photograph then challenges this decision in the courts, and takes it all the way to ECHR. We’ve now got quite a different case, once in which the photographer is not a party. But the core issue is similar; does GDPR generally prohibit the taking of an individual’s photograph without his consent and, if so, is that general ban compatible with the Convention, taking into account the rights that must be balanced?

If GDPR has the result that GM228 suggests, that looks like it could be a much wider ban on the taking of photographs that the ban under Norway’s Administration of Courts Act, which I haven’t read but which I’m guessing only restricts photography in courthouses, or of people involved in court cases. And of course the wider the ban, the hard it’s going to be to justify in light of the freedom of speech/public interests arguments. So just becaus they found the Norwegian law justified by the privacy arguments, if GDPR is much wider than the Norwegian law it doesn’t follow that they will find GDPR to be justified. We’ll have to wait for someone to bring the case.

GM228

Peregrinus wrote: »

It’s relevant that there was a law in Norway banning the taking of the photographs, so the sequence of events was: Photographer is penalised under Norwegian law -> photographer challenges law in the ECHR -> photographer loses.

How would this map on to the Irish situation that we are discussing here? Let’s assume that the taking of photographs by a photographer outside the court building is not banned by any court rule or court order. Is there any law which would ban or restrict the taking of the photograph? Well, GM228 suggests yes, GDPR has this effect. I think this gives rise to two alternative scenarios:

Option 1: photographer is penalised in some way under GDPR -> photographer challenges this in ECHR. This looks a bit like the Norway case, except that the law being challenged is a different law, and so the considerations in balancing right to privacy versus right to free speech may not play out the same way, so the photographer won’t necessarily lose. But he might lose.

Option 2: Irish authorities disagree with GM228 and take the view that GDPR does not prohibit the taking of this photograph, or for some other reason decline to take action against the photographer. Aggrieved person in the photograph then challenges this decision in the courts, and takes it all the way to ECHR. We’ve now got quite a different case, once in which the photographer is not a party. But the core issue is similar; does GDPR generally prohibit the taking of an individual’s photograph without his consent and, if so, is that general ban compatible with the Convention, taking into account the rights that must be balanced?

If GDPR has the result that GM228 suggests, that looks like it could be a much wider ban on the taking of photographs that the ban under Norway’s Administration of Courts Act, which I haven’t read but which I’m guessing only restricts photography in courthouses, or of people involved in court cases. And of course the wider the ban, the hard it’s going to be to justify in light of the freedom of speech/public interests arguments. So just becaus they found the Norwegian law justified by the privacy arguments, if GDPR is much wider than the Norwegian law it doesn’t follow that they will find GDPR to be justified. We’ll have to wait for someone to bring the case.

I didn't mention GDPR, the case is based on rights afforded by the ECHR, not the EUs GDPR, though GDPR could also be a consideration if someone took a case based on EU law to the ECJ.

The issue is the general principles of Article 8s application to anyone including those in court or in a public place, the reason why I stated the law in Norway is irrelevant is because you need to take account of Rec(2003)13 also in light of Articles 8 and 10. It's application is not limited to states with a ban in place, it applies to all member states.

It is also worth noting that Article 10 does not give the press or anyone a greater right to report than Article 8 gives a right of privacy, they are equal in all aspects so there are now equal competing rights at play, when these competing rights were tested in Norway Article 8 won, it is correct to say (as I have acknowledged previously) that not every case is the same, but it shows that freedom of the press to photograph anything including activities in public is far from absolute. Other settled case law from the ECtHR has held that when the media publishes photos photos that the protection of the rights and reputation of others takes on particular importance.

The landmark Hannover case has already confirmed Article 8 applies in a public place, it was not limited just to Germany or based on any national laws, it was a general application of principles of ECHR rights afforded to people in public places.

The Norway case actually cited it confirming the application of the principles to criminal proceedings:-

However, under the terms of Article 10 § 2, the exercise of the freedom of expression carries with it “duties and responsibilities”, which also apply to the press. In the present case this relates to protecting “the reputation or rights of others” and “maintaining the authority and impartiality of the judiciary”. These duties and responsibilities are particularly important in relation to the dissemination to the wide public of photographs revealing personal and intimate information about an individual (see Von Hannover v. Germany, no. 59320/00, § 59, ECHR 2004‑VI; Hachett Filipacchic Associés c. France, no 71111/01, § 42, 14 juin 2007). The same applies when this is done in connection with criminal proceedings (see Principle 8 in the Appendix to Recommendation Rec(2003)13 of the Committee of Ministers to member States on the provision of information trough media in relation to criminal proceedings, quoted at paragraph 21 above).The Court reiterates that the notion of private life in Article 8 of the Convention extends to a person’s identity, such as a person’s name or a person’s picture (Von Hannover , cited above, § 50; see also Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002).

The court has essentially confirmed the privacy expectations as contained in Rec(2003)13, that is a general statement which I would not consider only applicable to Norway or states with bans in their national laws, all member states including Ireland signed up to Rec(2003)13 and it's principles. Remember case law of the ECtHR is not just limited in application to the state involved, the principles held when in general apply to all member states and must be judicially noticed.

But as I said ultimately we really need an Irish test case followed by an ECtHR judgement and perhaps an ECJ case based on GDPR issues for good measure before we have a definitive answer here.

GM228

Irishphotodesk wrote: »

It has been an interesting discussion but at this point we are going in circles, one person - with experience in the area of European courts - cites one case and admits that each case is different but uses this to make a point that members of the public can claim privacy in public places (am I wrong with this?)

I never said it was absolute in the context of a court case, that will be dependant on the circumstances, but as has been shown an expectation of privacy can apply, it is very much dependant on the facts, there are tests by the ECtHR which the media would need to satisfy if a case were taken.

However, as per the Hannover case an expectation of privacy in public places whilst enjoying everyday life is the case. Hannover is regularly cited by the ECtHR as settled case law in most Article 8 or 10 cases.

Peregrinus

So would the argument basically be (a) there is a right to privacy which is infringed by the taking of these photographs, and (b) in so far as Irish law fails to vindicate that right by providing a remedy for those whose privacy is invaded by the photographs, the aggreived subjects of the photographs have remedy against Ireland?

GM228

Peregrinus wrote: »

So would the argument basically be (a) there is a right to privacy which is infringed by the taking of these photographs, and (b) in so far as Irish law fails to vindicate that right by providing a remedy for those whose privacy is invaded by the photographs, the aggreived subjects of the photographs have remedy against Ireland?

I would think so if the balancing of rights is held in the applicants favour, then the state could be found to have failed in regards to it's positive obligations.

Irishphotodesk

Peregrinius, there's an exemption in GDPR for journalism I believe its 80.2 or 80.5 something like that.

If it would satisfy the original poster, GM228 could give their learned view/opinion on if a person - whom a journalist was writing a story on - exiting the CCJ , in a direct line of sight to a photographer but inside the exterior pane of glass/door ... Would they consider this to be a breach of privacy as per their knowledge on the matter.

Specifically in the case mentioned by the OP, do you believe a person's rights to privacy were invaded?

Electronic Writer

Irishphotodesk wrote: »

If it would satisfy the original poster, GM228 could give their learned view/opinion on if a person - whom a journalist was writing a story on - exiting the CCJ , in a direct line of sight to a photographer but inside the exterior pane of glass/door ... Would they consider this to be a breach of privacy as per their knowledge on the matter.

It would.


But just to clarify, in the situation where I know the person , the line of site of the photographer is not obstructed by glass as the person is practically about to take his first step through the door to the outside.

GM228

Irishphotodesk wrote: »

Peregrinius, there's an exemption in GDPR for journalism I believe its 80.2 or 80.5 something like that.

If it would satisfy the original poster, GM228 could give their learned view/opinion on if a person - whom a journalist was writing a story on - exiting the CCJ , in a direct line of sight to a photographer but inside the exterior pane of glass/door ... Would they consider this to be a breach of privacy as per their knowledge on the matter.

Specifically in the case mentioned by the OP, do you believe a person's rights to privacy were invaded?

It's an exemption under Article 85 of GDPR. A case under the ECHR to the ECtHR would possibly be easier made than one under GDPR to the ECJ.

There is no straight yes or no answer to give, as I have said multiple times each case depends on the facts unique to that case and there are so many variables at play to give a definitive answer or opinion.

The only proper answer to give is "it may be a breach, but then again it may not be", to say it is definitely a breach would be the wrong answer.