Taking photos of others is it a crime?

GM228 wrote: »

Forget about the ECHR and privacy concerns for a moment, let’s look at the argument from a Data Protection element, what about the fact that taking a photograph comes under the definition of processing personal data and the point that specific permission must be given for such unless it is for a journalistic, academic, artistic or literary expression purpose for example. In other words, unless you can establish one of the permitted exceptions then you need permission to photograph someone even in public. I suppose you will say that is wrong also?

AndrewJRenko wrote: »

So the interesting question would be - what does it take to establish journalistic, academic, artistic or literary expression purpose?

Could almost every photo be established as artistic in some way?

Could every Twitter account be considered as journalistic?

Paul_Hacket wrote: »

GM228 you have made false claims repeatedly in this thread and when challenged have given almost zero evidence to back them. The Hannover case which you mention was a case where paparazzi were systemically stalking the children of a public figure and then publishing the photos for commercial gain. This falls under harassment laws in various jurisdictions, an issue which was dealt with early in this thread but which you claim therefore grants anybody a general right to privacy and therefore a right to not have their photo taken. It simply doesn't and you are borderline trolling by repeatedly making this claim.

Anybody can go out in public and take a photo of others legally and as long as they are not stalking/systematically harassing or impeding the travel of others by doing so they will not be breaking the law.

It's that simple and guess what - we know this due to the fact that (A) people take photos of other in public every day without their permission and (B) you have not been able to cite a single case of anyone in Ireland being prosecuted for having done so.

Give it up, you are simply posting false information.

Paul_Hacket wrote: »

Post a case citing a single instance of a person being prosecuted for what you claim is illegal. You can't because it isn't. Unlike yourself I actually know what I'm talking about. You're not a lawyer or a journalist with any professional knowledge of what you're claiming, if you were you wouldn't be spreading this nonsense. Again, go ahead and post a single case of somebody in Ireland being prosecuted for simply taking a photo or video of someone else and I'll shut up and happily concede to you.

Paul_Hacket wrote: »

You made generalizations in multiple posts above claiming someone's nebulous right to privacy would mean others do not have a right to photograph them. That simply and absolutely is not true. The question asked by the OP of this thread was whether taking photos of others in public is a crime. It isn't as long as you are not harassing them by doing so.

In your last response before this you cited the Sinnot versus Carlow Examiner case as an example of how privacy rights were upheld by the courts. Again, you are completely wrong in citing this because the court did not find against the photographer for taking the photo, they found against the newspaper for publishing it due to the fact that it inflicted emotional harm on the plaintiff by publishing a photo that had no redeeming value apart from prurience and THEREFORE did indeed impinge upon his right to privacy.

So now that I've cleared that up for you can we leave it at that?

GM228 wrote: »

As others have correctly stated it is not illegal (an offence) to take a photograph of someone (either in public or in private), however, the story does not end there.

It is a very commonly held belief that anyone in public for example can be photographed, that it is fair game and often the freedom of expression/freedom of the press is used as a just excuse, that could not be further from the truth.

You have a reasonable expectation of privacy (even when out in public) and there has been many cases where peoples rights have been breached, not just in a private setting, but also where photographs have been taken of them in public, you have a reasonable expectation of privacy and protection of your private life (this includes when in a public place and even if for example you are famous and in the public eye), in other words your right to privacy (even in public) will often trump any claimed freedom of expression or public interest, even when your well known.

Paul_Hacket wrote: »

You're speaking out of both sides of your mouth.
You say it's legal and then you try to say this in your first post on this thread:



This is not true in regard to the question of taking a photo of you in public AKA: THE ACTUAL SUBJECT OF THIS THREAD. So either you are deliberately trying to derail the thread to illustrate some irrelevant nonsense or you are deliberately trying to confuse people about what their actual rights are.

amounts to nothing more than making a record, not differing essentially from a full written description, of a public sight which any one present would be free to see

a person who walks down a public street will inevitably be visible to any member of the public who is also present and, in the same way, to a security guard viewing the scene through closed circuit television…..private life considerations may arise once any systematic or permanent record comes into existence of such material from the public domain

Contrary to Prosser’s contention that there is no difference between observing a person in a public place and photograph of him or her there, it should therefore be possible to breach a persons’ privacy by taking a photograph of him or her in a public place

The ECtHR recognises a personal image right as being an element of a personality right under Article 8. In the 2009 ECtHR case of Reklos v Greece,273 the Court held:

‘A person's image constituted one of the chief attributes of his or her personality, as it revealed the person's unique characteristics and distinguished the person from his or her peers. The right to the protection of one's image was thus one of the essential components of personal development and presupposed the right to control the use of that image.’

Rather than distinguishing between an image right and a personality right, the ECtHR regarded and recognised a publicity right as being an element of an image right. In Reklos, the Court held:

‘While in most cases the right to control such use involved the possibility for an individual to refuse publication of his or her image, it also covered the individual's right to object to the recording, conservation and reproduction of the image by another person. As a person's image was one of the characteristics attached to his or her personality, its effective protection presupposed, in principle and in circumstances such as those of the instant case, obtaining the consent of the person concerned at the time the picture was taken and not simply if and when it was published. Otherwise an essential attribute of personality would be retained in the hands of a third party and the person concerned would have no control over any subsequent use of the image.’

Essentially, the Court in Reklos was granting individuals complete rights over photographs of them, including some of the rights which a photographer currently has under copyright law, such as reproduction rights. It was also finding that both a prior permission to take a photograph of an individual and a model release are necessary. In relation to the actual taking of the photograph and the necessity for a prior consent to such, the Court held:

‘…the applicants' prior consent to the taking of their son's picture was indispensable in order to establish the context of its use. The management of the clinic did not, however, seek the applicants' consent and even allowed the photographer to enter the sterile unit, access to which was restricted to the clinic's doctors and nurses, in order to take the pictures in question. In addition, the photographer was able to keep the negatives of the offending photographs, in spite of the express request of the applicants, who exercised parental authority, that the negatives be delivered up to them.’

As a consequence, the Court determined that the national courts had not sufficiently guaranteed the applicant’s right to the protection of his private life in accordance with Article 8 of the Convention. In effect, the Court held that Article 8 extended a right of control over both the taking and any potential publication of a photograph of an individual. Courts in Ireland and the United Kingdom must take account of this decision of the ECtHR, when they are deciding cases concerning image rights. This is an important development by the Court in that it appears to expand the scope of Article 8.

The position in Reklos was further adopted by the ECtHR in the case of Von Hannover v Germany (No. 2),277 in which the Court directly linked the right over one’s image with a right of publicity. In Von Hannover, the Court held:

‘Regarding photos, the Court has stated that a person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one’s image is thus one of the essential components of personal development. It mainly presupposes the individual’s right to control the use of that image, including the right to refuse publication thereof.'

A right to control the use of one’s image means that celebrities and others can decide which photographs to permit and which ones to object to in order to create a public profile of themselves which is either fabricated or at best one-sided

The implication for photographers and photograph publishers of the decision in Reklos, and as subsequently adopted in Von Hannover (No. 2), is that it would appear that individuals in Ireland and the United Kingdom could claim to have personal image and publicity rights. The ECtHR appears to have expanded the reach of the wording of the Article 8 right to privacy beyond any notion of privacy. While there is neither a constitutional nor statutory personal image right or publicity right in Ireland or the United Kingdom, Irish and English courts will have to take cognisance of this decision of the ECtHR when deciding such cases. If these rights were to be expanded further, such a situation could result in a disproportionate restriction on the right of freedom of expression.

The actual taking of a photograph of an individual, the storing of the images' contents on a computerised photo filing system and the retrieval of the image at a later stage to either view, edit, manipulate, print or send it to a publisher for publication are all activities which would come within the earlier definition of "processing". In effect, virtually all photographers who photograph people are both data controllers and data processors. Under Art. 6 of the 2016 Regulations, the processing of personal data is lawfully undertaken only if, among other specified conditions, the data subject has consented to the processing of his/her personal data for one or more specific purposes

The right to the protection of one’s image is one of the essential components of personal development and presupposes the right to control the use of that image(Reklos and Davourlis v.Greece, 2009, §§40-43). Except where an individual has knowingly or accidentally laid himself open to the possibility of having his photograph taken in the context of an activity that was likely to be recorded or reported in a public manner, the effective protection of one’s image presupposes, in principle, obtaining the consent of the person concerned at the time the picture is taken and not simply if and when it is published(ibid., §§37, 40). However, this principle is not absolute. The status of public or newsworthy figure may, in certain circumstances, on public-interest grounds, justify the recording of a person’s image without his or her knowledge and its dissemination without his or her consent.

This Guide has been prepared by the Directorate of the Jurisconsult and does not bind the Court. It may be subject to editorial revision