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Taking photos of others is it a crime?

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Comments

  • Registered Users, Registered Users 2 Posts: 20,110 ✭✭✭✭cnocbui


    GM228 wrote: »
    Indeed, but the point being made is you do have a reasonable expectation of privacy even in a public place, if not how can a picture published of an activity ever successfully be considered a breach of privacy when the event happens in front of 1000s of people?

    This right is afforded under Article 8 of the ECHR, that protection under Article 8 extends to the taking of photographs, not just their publication, the Reklos and Davourlis vs Greece (Case 1234/05) ECHR 2009 case sums it up:-

    That Reklos case is a very bad example. The photography did not take place in a public place. I very much doubt the court would have ruled as they did, had the photo been taken in a public place by an amateur photographer taking pics in the park.
    In Reklos and Davourlis v. Greece, a baby Anastasios Reklos was put into a sterile unit when he was born. While in the sterile unit, his photograph was taken without the permission of his parents by the Hospital as part of its commercial services. The baby’s parents objected and their request for the negatives was refused by the Hospital.
    https://infusionlawyers.com/former-mohits-stars-or-former-cultists-unauthorized-publication-of-pictures-image-rights-and-nigerian-law/

    Furthermore, the court ruling, had it applied to a public place, would have invalidated the use of all CCTV cameras covering public areas due to this bit:
    it also covers the individual’s right to object to the recording, conservation and reproduction of the image


  • Moderators, Category Moderators, Arts Moderators, Sports Moderators Posts: 50,171 CMod ✭✭✭✭magicbastarder


    GM228 wrote: »
    Indeed, but the point being made is you do have a reasonable expectation of privacy
    how can you say that or reach that conclusion when the verdict in the case was very specifically about *publication*?
    and the judge seems to have explicitly avoided any determination on a right to privacy?

    if you are (from what i can see) misreading this court case so badly, whatever credence i previously had in your comments relating to the ECHR ruling is completely shot now.


  • Registered Users, Registered Users 2 Posts: 8,922 ✭✭✭GM228


    cnocbui wrote: »
    That Reklos case is a very bad example. The photography did not take place in a public place. I very much doubt the court would have ruled as they did, had the photo been taken in a public place by an amateur photographer taking pics in the park.

    https://infusionlawyers.com/former-mohits-stars-or-former-cultists-unauthorized-publication-of-pictures-image-rights-and-nigerian-law/

    Furthermore, the court ruling, had it applied to a public place, would have invalidated the use of all CCTV cameras covering public areas due to this bit:

    The ruling of the ECtHR concerned the general principles of Article 8 (the requirement for consent has also been tested in Krone Verlag GmbH & Co. KG vs Austria (Case 34315/96) ECHR 2002 for example IIRC), the requirement for consent is a general principle of Article 8 of the ECHR, it is not just limited to the facts of the Reklos case, find the actual case and read it!

    By the way there is an ECtHR case that holds CCTV can be a breach of Article 8 (depending on it's use - Peck vs The United Kingdom (Case 44647/98) ECHR 2003). Like every right there are legitimate interests and competing rights at play.


  • Registered Users, Registered Users 2 Posts: 8,922 ✭✭✭GM228


    how can you say that or reach that conclusion when the verdict in the case was very specifically about *publication*?
    and the judge seems to have explicitly avoided any determination on a right to privacy?

    if you are (from what i can see) misreading this court case so badly, whatever credence i previously had in your comments relating to the ECHR ruling is completely shot now.

    My conclusion as already outlined is based on the settled case law of the ECtHR - it's Strasbourg's conclusion, not mine.

    A breach of privacy was held to be the case based on any available media coverage, this is one of those cases where there is no written judgement so we only have media reports to rely on, but it is well accepted in the legal world that the case was a breach of privacy case, it has been mentioned in a few well respected legal publications.


  • Registered Users, Registered Users 2 Posts: 5,806 ✭✭✭The J Stands for Jay


    GM228 wrote: »
    The ruling of the ECtHR concerned the general principles of Article 8 (the requirement for consent has also been tested in Krone Verlag GmbH & Co. KG vs Austria (Case 34315/96) ECHR 2002 for example IIRC), the requirement for consent is a general principle of Article 8 of the ECHR, it is not just limited to the facts of the Reklos case, find the actual case and read it!

    By the way there is an ECtHR case that holds CCTV can be a breach of Article 8 (depending on it's use). Like every right there are legitimate interests and competing rights at play.

    "In view of a person’s position as a politician, there was no doubt that he had entered the public arena
    and had to bear the consequences. There was, therefore, no valid reason why the applicant should have
    been prevented from publishing his picture."


  • Registered Users, Registered Users 2 Posts: 8,922 ✭✭✭GM228


    "In view of a person’s position as a politician, there was no doubt that he had entered the public arena
    and had to bear the consequences. There was, therefore, no valid reason why the applicant should have
    been prevented from publishing his picture."

    The part in bold is key, the Schüssel vs Austria (Case 42409/98) ECHR 2002 and Hachette Filipacchi Associés vs France (Case 40454/07) ECHR 2014 cases for example have specifically dealt with political figures and balanced Article 10 (freedom of expression) in favour of Article 8.

    From the Lingens vs Austria (Case 9815/82) ECHR 1986 case which sums it up nicely:-
    the limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance


  • Posts: 14,344 ✭✭✭✭ [Deleted User]


    Educated people on this thread have disagreed with you. Gm228 damn well schooled you

    "damn well schooled" me? Other than that being a very childish way to word your posts, all he did was disagreed with me? And I still believe that he's wrong.. so.. not sure what that achieved..?

    GM228 wrote: »
    The protections afforded by the ECHR are afforded in 47 different countries... the only problem here is Irish Courts have yet to give us a case specifically applying the principles of the ECtHR - the UK has done that quite some time ago with the Naomi Campbell, Michael Douglas and Paul Weller cases for example.

    I don't know who all three of those are, but I am familiar with the Naomi Campbell one (assuming you're referring to her being at an AA-style meeting about drugs (Narcotics Anonymous).

    Just wanted to mention that the ruling in that instance didn't say that the photographs weren't allowed to be taken. That wasn't the issue, and nothing came up to say she was afforded any privacy in a public place, from my memory of it (in a similar thread to this, it was discussed in depth before, too).

    I'm not sure off the top of my head who the other the other two are, or what their issues were, though.

    In the world of celebrities, one story that I do remember (probably going back a while here) was Kate Midleton being photographed naked sunbathing. My memory here is hazy, so i could be getting details wrong, but in this instance, she was on an outdoor, albeit private, beach.

    A photographer used a mega-mega-mega zoom lens to get a photo of her. His stance was that he was in a public place when he took the picture.

    However, I believe he was wrong in this instance as it was said (rightly so) that due to the distance involved, and the photographer having to make such a concentrated effort, and due to the otherwise private nature of the area Kate was (not overlooked, or within reasonable distance of the public where she could expect to be seen), she did have a reasonable expectation to privacy.

    (which brings me back to my earlier example in the thread, of a woman whose bathroom overlooks the street).


  • Registered Users Posts: 13 BenjiZ


    It depends on the circumstances (harassment/intimidation etc.). But if this doesn't apply, then it is perfectly legal. The person could argue that they were testing out a new camera or anything under the sun. On private property, it differs


  • Posts: 0 [Deleted User]


    cnocbui wrote: »
    Sinnott vs Carlow Nationalist - the Carlow Nationalist was seeking to refer this to the Supreme Court, but I have been unable to find any further on it.


    That was an appeal from the Circuit Court to the High Court. There is no further appeal from the High Court in such cases.


  • Registered Users, Registered Users 2 Posts: 2,391 ✭✭✭olestoepoke


    John_Rambo wrote: »
    I was assigned to photograph a kids GAA match and almost had my camera (with my most expensive long lens) knocked out of my hand before the over zealous coach was apprehended by the member that hired me.

    The coach was walking quietly behind me, never said a word but when I bought the camera up to my face to see how fast I could shoot in the light he lunged. He could have just asked me who I was.

    It is legal to photograph kids in a public place, but when it's a camera and not a phone people see red, or decide to be a hero.

    I'm involved in schoolboy soccer, we often have a parent who is an amateur photographer take photos for the Facebook page. That said they always go around the parents of the team we are playing and ask if its ok. Did you have the same awareness?


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  • Registered Users, Registered Users 2 Posts: 20,110 ✭✭✭✭cnocbui


    ecoli3136 wrote: »
    That was an appeal from the Circuit Court to the High Court. There is no further appeal from the High Court in such cases.
    However, the High Court proceedings are still ongoing before Mr Justice Budd, and, on Monday, the Nationalist asked Budd J to refer the matter to the Supreme Court. According to newspaper reports on Tuesday (Irish Independent | Irish Times), he adjourned to February 12th next the issue of whether he will refer such issues to the Supreme Court for determination. He should. Although the amount of damages under appeal is relatively small (at only €6,500), the issues of principle involved are of the highest importance.
    http://www.cearta.ie/2007/02/sinnott-v-carlow-nationalist-for-the-supreme-court/

    Refer/appeal - whatever.


  • Registered Users, Registered Users 2 Posts: 6,289 ✭✭✭Claw Hammer


    ecoli3136 wrote: »
    That was an appeal from the Circuit Court to the High Court. There is no further appeal from the High Court in such cases.

    There can be a case stated from the High Court (at that time, now it is to the Court of Appeal).


  • Posts: 0 [Deleted User]


    cnocbui wrote: »


    Yeah. I mean, sorry no.


    The Circuit Court used to be able to refer points of law direct to the Supreme Court on a case stated. There was no appeal from the High Court to the Supreme Court on a Circuit appeal.

    Under the "new" rules (28 October 2014) cases stated by the Circuit Court go to the Court of Appeal.

    I can't remember if you can appeal the Court of Appeal decision on a case stated like that.

    There can be a case stated from the High Court (at that time, now it is to the Court of Appeal).



    There can be an appeal direct to Supreme Court from the High Court, in a case of general public importance and where the interests of justice apply in favour of allowing the appeal to go direct ("leapfrogging" the Court of Appeal).


    Still no "refer/appeal - whatever" from a High Court decision on a circuit appeal though.


  • Registered Users, Registered Users 2 Posts: 6,289 ✭✭✭Claw Hammer


    ecoli3136 wrote: »
    Yeah. I mean, sorry no.


    The Circuit Court used to be able to refer points of law direct to the Supreme Court on a case stated. There was no appeal from the High Court to the Supreme Court on a Circuit appeal.

    Under the "new" rules (28 October 2014) cases stated by the Circuit Court go to the Court of Appeal.

    I can't remember if you can appeal the Court of Appeal decision on a case stated like that.






    There can be an appeal direct to Supreme Court from the High Court, in a case of general public importance and where the interests of justice apply in favour of allowing the appeal to go direct ("leapfrogging" the Court of Appeal).


    Still no "refer/appeal - whatever" from a High Court decision on a circuit appeal though.

    The High Court can state a case to the Court of Appeal on a Circuit Appeal. Eg Permanent TSB v Langan, which was itself appealed to the Supreme Court.

    https://www.courts.ie/acc/alfresco/277a793e-9390-4abc-af58-45b5a308ce34/2017_IESC_71_1.pdf/pdf#view=fitH


  • Posts: 0 [Deleted User]


    The High Court can state a case to the Court of Appeal on a Circuit Appeal. Eg Permanent TSB v Langan, which was itself appealed to the Supreme Court.

    https://www.courts.ie/acc/alfresco/277a793e-9390-4abc-af58-45b5a308ce34/2017_IESC_71_1.pdf/pdf#view=fitH

    That is true but that's a consultative case stated, which has to be done by the trial judge prior to determining the case before them.


  • Registered Users, Registered Users 2 Posts: 6,289 ✭✭✭Claw Hammer


    ecoli3136 wrote: »
    That is true but that's a consultative case stated, which has to be done by the trial judge prior to determining the case before them.

    Who said anything else?


  • Posts: 0 [Deleted User]


    Who said anything else?

    Eh, this is getting weird, so good luck to you. I don't think this is the forum for me.


  • Registered Users, Registered Users 2 Posts: 8,922 ✭✭✭GM228


    "damn well schooled" me? Other than that being a very childish way to word your posts, all he did was disagreed with me? And I still believe that he's wrong.. so.. not sure what that achieved..?

    Is the ECtHR wrong also?

    This is not just some oul opinion I’m floating, it’s long settled case law!


    I don't know who all three of those are, but I am familiar with the Naomi Campbell one (assuming you're referring to her being at an AA-style meeting about drugs (Narcotics Anonymous).

    That’s the one. The other cases were similar – infringements of Article 8 and the right to privacy (even in a public place).


    Just wanted to mention that the ruling in that instance didn't say that the photographs weren't allowed to be taken.

    I didn’t say the ruling did, that position is a ECtHR position, though in an earlier UKHC case, the (R) Ford vs Press Complaints Commission [2001] EWHC 683 case it was noted that a couple was denied the opportunity to give their consent to being photographed.

    That wasn't the issue, and nothing came up to say she was afforded any privacy in a public place, from my memory of it (in a similar thread to this, it was discussed in depth before, too).

    Yes it did, the action was for a breach of confidence and/or unlawful invasion of privacy – the very test for establishing such a breach of confidence was to establish that you had a reasonable expectation of privacy for the information (such as the AA meetings, the photos in public etc) under the circumstances, known as “the reasonable expectation of privacy test”, if she didn’t establish she had a reasonable expectation to privacy then the case would have failed and the Mirror would have won, but, guess what, the photos were taken of her in a public place sitting down outside a café in public, how did he satisfy the test if the court didn’t hold there to be a reasonable expectation of privacy? The reasonable expectation of privacy test is discussed in the UKHL judgement, the subsequent ECtHR case and plenty of UK and UKtHR case law.

    The majority verdict of the UKHL held the photos (amongst other things) were a breach of her right to privacy, the photos may have been taken covertly, but, they were nevertheless taken in public. Her case was originally a Data Protection case, but ended up as a violation of Article 8 ECHR case.

    Few are aware (probably because it isn’t reported much) that the UKHL case was not the end of the matter, the Mirror having exhausted the UK courts took the case to the ECtHR, and guess what – they lost again. The ECtHR noted when it comes to taking photos and freedom of expression that publication of the photographs and articles (the sole purpose of which is to satisfy the curiosity of a particular readership regarding the details of a public figure's private life), cannot be deemed to contribute to any debate of general interest to society despite the person being known to the public. In such conditions freedom of expression calls for a narrower interpretation, although freedom of expression also extends to the publication of photographs, this is an area in which the protection of the rights and reputation of others takes on particular importance. Photographs appearing in the media are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life - that's what happened.

    The facts of the Hannover case were decided after the Campbell UKHL case, but the ECtHR applied them to their Campbell case.

    So, if you still think there can't be any reasonable expectation of privacy in a public place explain to me how there have been successful cases for an invasion of privacy for photos taken in a public place?

    The Law Reform Commissions 1998 "Report on Privacy" even noted a reasonable expectation for privacy even in a public place here (published well before the definitive ECtHR cases):-
    Privacy is important for all these reasons and is therefore indispensable to the full flourishing of the human personality in a free society. We stress that while personal space is at its most visible in “private places” or on private property, it is not premised on, nor is it limited to, conceptions of property. Indeed, the chief deficiency of much existing law is that it tends to protect privacy – if at all – through property and through legal tools that protect property interests. Considering the values honoured by privacy, as set out above, one may have a “reasonable expectation” of privacy in many different contexts. It follows, in our view, that there may well be a residuum of privacy or a “reasonable expectation” of privacy even in a public place. This view accords with the overall approach being adopted by the European Commission and Court of Human Rights in interpreting Article 8 of the European Convention on Human Rights
    Since we view privacy as a personal right and one that follows the personal space of the person it follows that a “reasonable expectation” of privacy may even exist in public places.
    A person's right to freedom from surveillance is at its highest, and comes closest to being absolute, when he or she is at home. There is logically also a heightened right to such privacy for a person on other kinds of private premises. Yet even at home, a person may so behave (e.g. before the window of a lighted room at night without drawing the curtains or in the garden of a dwellinghouse which is open to public view from the street) that persons in neighbouring premises or casual bypassers (without snooping or resorting to visual or aural surveillance equipment) cannot fail to see or hear what is going on. In some such cases the dweller may even intend to be seen or photographed and clearly there is no invasion of privacy in such a case.

    By contrast with the home, a person's reasonable expectation of privacy is greatly reduced when that person is in a public place. Persons who are in public places must accept that they are subject to the ordinary and natural incidences of everyday communal living. Thus, the taking of casual photographs in a public place should not normally be held to be an invasion of the privacy of a person who happens to be captured by such a photograph merely because he or she is present in that place at the relevant time.

    On the other hand a reduced expectation of privacy is not the same as denying the public any right to adequate safeguards (e.g. adequate notification or limits on the use of footage) against the abuse of overt street surveillance.

    Furthermore, the targeting of a particular individual either surreptitiously or against his or her will in a public place, particularly with a view to publication of that person's photograph, could well, depending on the circumstances, be held to be an invasion of that person's privacy. The deliberate following (whether surreptitious or otherwise) of a person from place to place with a view to observing his or her movements could, it is suggested, be so categorized.

    Also, consider this from the ECtHR-
    The concept of private life extends to aspects relating to personal identity, such as a person’s name, or a person’s picture.

    Furthermore, private life......includes a person’s physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life”

    The fact you are out in public does not take away the fact that you may have privacy rights under the ECHR, it can still be considered part of your private life, that's now long settled and accepted jurisprudence of the ECtHR, where it gets grey is when competing rights and legitimate reasons come into play.

    And for further consideration from the prominent Peck vs The United Kingdom (Case 44647/98) ECHR 2003 case:-
    The monitoring of the actions of an individual in a public place by the use of photographic equipment which does not record the visual data does not, as such, give rise to an interference with the individual's private life. On the other hand, the recording of the data and the systematic or permanent nature of the record may give rise to such considerations

    Generally, everyday street photos will not fall foul of Article 8 (something both the LRC and ECtHR have agreed on), but, photographs taken specifically of you, even in public can fall foul of Article 8 and your reasonable expectation of privacy (again both the LRC and the ECtHR have agreed on this).

    Finally, a quote from the Kennedy vs Ireland [1987] IR 587 High Court case:-
    nature of the right to privacy must be such as to ensure the dignity and freedom of an individual in the type of society envisaged by the Constitution, namely, a sovereign, independent and democratic society.

    And how the LRC read that in conjunction with Article 8:-
    This points to a personal right of privacy that exists no matter the context (albeit affected by the context) and regardless of whether privacy is already indirectly protected e.g. through property or the inviolability of a dwelling. It gives rise to a “reasonable expectation of privacy” even in public places.

    Perhaps the LRC is also wrong?


  • Registered Users, Registered Users 2 Posts: 4,081 ✭✭✭sheesh


    Neighbour of mine told me that recently another man appeared to take photos of my neighbour and two of of his kids. Reasons unknown but apparently this picture esc taken in a public street

    So my neighbour is obviously not impressed but the question remains is the illegal or legal ?

    Legal? I think it is. My understanding from various photography courses is there can be no expection of privacy on the public street, it is public. Also it is legal to photograph something on private property that is viewable from a public area. people have reasonable expectation of privacy in their back garden but is is complicated if it is viewable from a public area.

    Ages ago Kate Middleton of the british royal family was photographed topless while on holiday in france by a paparazzi she was on an estate and the photographer took the shot from about a mile away on a public road he got in trouble because a court found that she had a reasonable expectation of privacy where they were.

    If you are upset about it I would approach the photographer and calmly ask "why are you taking a picture of my children". it is a very simple question. if they can answer it and sound like a normal person you're fine. If they get defensive and talking about freedom of the press ask to see nuj card. you might be dealing with a nut or someone who has just bought a new lens and wanted to try it out. It's a broad church. :D


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  • Registered Users, Registered Users 2 Posts: 8,922 ✭✭✭GM228


    sheesh wrote: »
    My understanding from various photography courses is there can be no expection of privacy on the public street, it is public.

    Did you read the thread?


  • Posts: 14,344 ✭✭✭✭ [Deleted User]


    GM228 wrote: »
    Is the ECtHR wrong also?

    This is not just some oul opinion I’m floating, it’s long settled case law!

    Perhaps the LRC is also wrong?

    Almost every mention of taking photos in your quotes has some other element to it that causes the issue to not actually be about taking people's photographs.



    I think you're interpreting things differently to how they're intended. I've worked as a photojournalist for years, and I've worked alongside others who were at it a lot longer than me. My personal and practical experience, coupled with my knowledge and interpretation of the law (extending to a colleague who was attacked when taking photos of someone on their private property from separate private property, where this specific issue was discussed in-depth, albeit not so much publicly).


    (I do appreciate that link doesn't really delve into the photo side of it).


    I can argue with you back and forth until we're both collecting our pensions, but I'll bow out, as I don't see us changing each other's opinion, but my last comment on it will be that I've read everything you've posted, and none of it says I can't take a photo of you in public.


  • Registered Users, Registered Users 2 Posts: 8,922 ✭✭✭GM228


    Almost every mention of taking photos in your quotes has some other element to it that causes the issue to not actually be about taking people's photographs.

    Such as?

    So you think that the courts have not found photographs in public of various people to be an infringement of their right to privacy? Can there be no expectation of privacy in public?

    There is a general right to privacy in this state under both the Constitution and the ECHR which is not qualified by the location, there are also personal image and publicity rights afforded by the ECtHR under the ECHR and these rights must be recognised by the Irish courts. Such personal image and publicity rights afford the subject of a photo the right to refuse permission to be photographed, some prominent photographers recognise these rights and have acknowledged that it could cause a disproportionate restriction to the freedom of expression.

    The Hannover case is the principle case on the matter, ALL the photos which were the subject of the case were taken in public places, despite this they depicted the princess in scenes from her daily life, thus involving activities of a purely private nature and so were part of her private life and as such she (just like everyone) was entitled to a legitimate expectation of protection of and respect for her private life. The ECtHR has noted that increased vigilance in protecting private life is necessary to contend with new communication technologies which make it possible to store and reproduce personal data and this extends to the systematic taking of specific photos and their dissemination to a broad section of the public, and whilst the Hannover case strictly speaking concerned the publication of photographs the court noted that the context in which these photos were taken - without the princess's knowledge or consent cannot be fully disregarded, and of course the subject for consent was later held in the Reklos case and reaffirmed in the Hannover (No.2) case.
    I can argue with you back and forth until we're both collecting our pensions, but I'll bow out, as I don't see us changing each other's opinion, but my last comment on it will be that I've read everything you've posted, and none of it says I can't take a photo of you in public.

    But yet the ECtHR recognises that a general right under Article 8 of the ECHR requires consent for a photograph to be taken of you, it does not qualify this by being in a public or private place and has already long held that matters of private life can happen in public place, they also recognise that photographs in general give rise to privacy considerations when a permanent record is created for example. Now obviously there are competing rights and legitimate interests at play also, but, a competing right does not simply erase the right it is competing with, rather they balance against each other.

    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?

    The case law of the ECtHR makes it very clear that we (even celebrities) have personal image and publicity rights, that alone (never mind a right of privacy or protection of private life) gives us control over the taking of and use of our photograph in the course of our everyday lives even in a public place.


  • Registered Users, Registered Users 2 Posts: 29,443 ✭✭✭✭AndrewJRenko


    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?
    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?


  • Registered Users, Registered Users 2 Posts: 724 ✭✭✭athlone573


    GM228 wrote: »
    Such as?

    So you think that the courts have not found photographs in public of various people to be an infringement of their right to privacy? Can there be no expectation of privacy in public?

    There is a general right to privacy in this state under both the Constitution and the ECHR which is not qualified by the location, there are also personal image and publicity rights afforded by the ECtHR under the ECHR and these rights must be recognised by the Irish courts. Such personal image and publicity rights afford the subject of a photo the right to refuse permission to be photographed, some prominent photographers recognise these rights and have acknowledged that it could cause a disproportionate restriction to the freedom of expression.

    The Hannover case is the principle case on the matter, ALL the photos which were the subject of the case were taken in public places, despite this they depicted the princess in scenes from her daily life, thus involving activities of a purely private nature and so were part of her private life and as such she (just like everyone) was entitled to a legitimate expectation of protection of and respect for her private life. The ECtHR has noted that increased vigilance in protecting private life is necessary to contend with new communication technologies which make it possible to store and reproduce personal data and this extends to the systematic taking of specific photos and their dissemination to a broad section of the public, and whilst the Hannover case strictly speaking concerned the publication of photographs the court noted that the context in which these photos were taken - without the princess's knowledge or consent cannot be fully disregarded, and of course the subject for consent was later held in the Reklos case and reaffirmed in the Hannover (No.2) case.



    But yet the ECtHR recognises that a general right under Article 8 of the ECHR requires consent for a photograph to be taken of you, it does not qualify this by being in a public or private place and has already long held that matters of private life can happen in public place, they also recognise that photographs in general give rise to privacy considerations when a permanent record is created for example. Now obviously there are competing rights and legitimate interests at play also, but, a competing right does not simply erase the right it is competing with, rather they balance against each other.

    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?

    The case law of the ECtHR makes it very clear that we (even celebrities) have personal image and publicity rights, that alone (never mind a right of privacy or protection of private life) gives us control over the taking of and use of our photograph in the course of our everyday lives even in a public place.

    I wouldnt say you "need permission" more that you could be sued... That distinction between crimes and infringements of civil rights... But I think public opinion in most cases is on the side of the photographer.


  • Registered Users, Registered Users 2 Posts: 8,922 ✭✭✭GM228


    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?

    Well the ECJ has held videos on YouTube to be journalistic in the Sergejs Buivids vs Datu Valsts Inspekcija Case C-345/17 case , so I'm sure Twitter is fine!

    They have held journalistic activities to be those which have as their purpose the disclosure to the public of information, opinions or ideas, but, ultimately it will need more case law from our domestic courts and the ECJ for any definitive answers.


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  • Registered Users Posts: 363 ✭✭Paul_Hacket


    GM228 wrote: »
    Such as?

    So you think that the courts have not found photographs in public of various people to be an infringement of their right to privacy? Can there be no expectation of privacy in public?

    There is a general right to privacy in this state under both the Constitution and the ECHR which is not qualified by the location, there are also personal image and publicity rights afforded by the ECtHR under the ECHR and these rights must be recognised by the Irish courts. Such personal image and publicity rights afford the subject of a photo the right to refuse permission to be photographed, some prominent photographers recognise these rights and have acknowledged that it could cause a disproportionate restriction to the freedom of expression.

    The Hannover case is the principle case on the matter, ALL the photos which were the subject of the case were taken in public places, despite this they depicted the princess in scenes from her daily life, thus involving activities of a purely private nature and so were part of her private life and as such she (just like everyone) was entitled to a legitimate expectation of protection of and respect for her private life. The ECtHR has noted that increased vigilance in protecting private life is necessary to contend with new communication technologies which make it possible to store and reproduce personal data and this extends to the systematic taking of specific photos and their dissemination to a broad section of the public, and whilst the Hannover case strictly speaking concerned the publication of photographs the court noted that the context in which these photos were taken - without the princess's knowledge or consent cannot be fully disregarded, and of course the subject for consent was later held in the Reklos case and reaffirmed in the Hannover (No.2) case.



    But yet the ECtHR recognises that a general right under Article 8 of the ECHR requires consent for a photograph to be taken of you, it does not qualify this by being in a public or private place and has already long held that matters of private life can happen in public place, they also recognise that photographs in general give rise to privacy considerations when a permanent record is created for example. Now obviously there are competing rights and legitimate interests at play also, but, a competing right does not simply erase the right it is competing with, rather they balance against each other.

    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?

    The case law of the ECtHR makes it very clear that we (even celebrities) have personal image and publicity rights, that alone (never mind a right of privacy or protection of private life) gives us control over the taking of and use of our photograph in the course of our everyday lives even in a public place.

    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.


  • Registered Users, Registered Users 2 Posts: 8,922 ✭✭✭GM228


    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.

    The Hannover was an Article 8 infringement case, and all that I have outlined was stated by the ECtHR in the cases mentioned, I suggest readers actually read those cases.

    No evidence, false information? Did you read the threads linked to, the ECtHR judgements, the opinion of the Irish Law Reform Commission, the Circuit and High Court Sinnott case? I'll have to dig out the respected peer reviewed publications on the subject next I suppose.

    An old internet link (with nothing to back it up) or people stating I'm a photographer, or simply yes you can because I or someone else says so is not any sort of conclusive evidence of fact either you know.


  • Registered Users Posts: 363 ✭✭Paul_Hacket


    GM228 wrote: »
    The Hannover was an Article 8 infringement case, and all that I have outlined was stated by the ECtHR in the cases mentioned, I suggest readers actually read those cases.

    No evidence, false information? Did you read the threads linked to, the ECtHR judgements, the opinion of the Irish Law Reform Commission, the Circuit and High Court Sinnott case? I'll have to dig out the respected peer reviewed publications on the subject next I suppose.

    An old internet link (with nothing to back it up) or people stating I'm a photographer, or simply yes you can because I or someone else says so is not any sort of conclusive evidence of fact either you know.

    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.


  • Registered Users, Registered Users 2 Posts: 8,922 ✭✭✭GM228


    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.

    Have you actually read this thread and the linked threads??

    I know it's not illegal, and I never stated it was illegal, therefore I can't post any case for you to concede to because that would be impossible because you can't be prosecuted - I never made any such claim, but I do know my law - very very well!

    But I have shown cases where reasonable expectation of privacy has been held in public and where we have have personal image and publicity rights, breaches of rights are civil, not criminal - but I'm sure you know that seeing as how you know what your talking about.

    So perhaps you should rethink the angle your coming from.


  • Registered Users Posts: 363 ✭✭Paul_Hacket


    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?


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  • Registered Users, Registered Users 2 Posts: 8,922 ✭✭✭GM228


    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?

    I never said the court found against the photographer, that case reinforced the point I made that there can be privacy rights even in public and showed at least one Irish case on that point I made, however the issue of control over ones image and personal image and publicity rights has seen the ECtHR hold that that is the position that you have say over weather someone can take your photograph in the first place, that is a right born out of the protection of private life under Article 8, and as already stated numerous times the idea of private life under the ECHR is long accepted by the ECtHR to extend into public places.

    That is the position of the ECtHR, not some old opinion I've thrown out there for fun.

    On the point of the question raised by the OP I acknowledged from the very start that it was not illegal:-
    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.

    Threads expand and evolve you know.


  • Registered Users Posts: 363 ✭✭Paul_Hacket


    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:
    GM228 wrote: »
    ]
    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.

    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.


  • Registered Users, Registered Users 2 Posts: 8,922 ✭✭✭GM228


    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.

    Yes and that is the position held by the ECtHR.

    But don't just take my word for it.

    There is an excellent 30 page article in the well respected and peer reviewed Cambridge Law Journal, Vol. 65, No. 3 about privacy in public places by Professor of Law Nicole Moreham.

    She details the various UK common law and UKtHR jurisprudence in relation to privacy in public and photography, nearing the end she quotes the famous William Prosser passage from his American Restatement of Torts, Second (a treatise issued by the American Law Institute) where he famously stated that taking a photograph:-
    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

    She then noted that Lord Hope in the Campbell case gave approval to the PG and GH vs The United Kingdom (Case 44787/980 ECHR 2001 case:-
    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

    And finally she concludes:-
    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


    Now if that is not enough perhaps I'll dig out Michael O’Flanagan Photography and the Law, Rights and Restrictions (1st edition, Routledge 2020):-
    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

    And finally:-
    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.

    Now for anyone who does not know, the author Michael O' Flanagan is a Doctor of Philosophy in Law and Bachelor of Law, but, more importantly he is a multi award winning photographer, a Graduateship of the Marketing Institute of Ireland, a licentiate of the Irish Professional Photographers’ & Videographers’ Association and a freelance photographer member of the National Union of Journalists, in another section of his excellent book he details that also under GDPR consent is required for a photographer to merely take your photograph - unless one of the exemptions I previously mentioned is invoked.
    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


    So are two well respected legal experts (one of which is an Irish award winning photo journalist) also wrong just like me?


  • Registered Users, Registered Users 2 Posts: 29,443 ✭✭✭✭AndrewJRenko


    GM228 wrote: »
    Well the ECJ has held videos on YouTube to be journalistic in the Sergejs Buivids vs Datu Valsts Inspekcija Case C-345/17 case , so I'm sure Twitter is fine!

    They have held journalistic activities to be those which have as their purpose the disclosure to the public of information, opinions or ideas, but, ultimately it will need more case law from our domestic courts and the ECJ for any definitive answers.

    Interesting case - I guess we do need further case law to establish a clear definition of what does and does not constitute a journalist.


  • Registered Users, Registered Users 2 Posts: 4,081 ✭✭✭sheesh


    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.

    from here

    https://www.echr.coe.int/Documents/Guide_Data_protection_ENG.pdf

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

    So can someone tell me if if there is a right to control your image in ireland?

    So in principal the OPs neighbour could take the photographer to the UNCHR

    annoyingly of course this means that gm228 might be technically correct but that the law has not yet been enacted or is not enforced in Ireland and other countries, people still take pictures on nights out. it also would have significant impact some very influential industries like print and digital media, phone companies, social media.


  • Registered Users, Registered Users 2 Posts: 8,922 ✭✭✭GM228


    sheesh wrote: »
    from here

    https://www.echr.coe.int/Documents/Guide_Data_protection_ENG.pdf

    it also says



    So can someone tell me if if there is a right to control your image in ireland?

    So in principal the OPs neighbour could take the photographer to the UNCHR

    annoyingly of course this means that gm228 might be technically correct but that the law has not yet been enacted or is not enforced in Ireland and other countries, people still take pictures on nights out. it also would have significant impact some very influential industries like print and digital media, phone companies, social media.

    The right to control one's image is a right afforded under the ECHR as confirmed by the ECtHR, the ECHR applies to 47 countries including Ireland as we signed up to it (and implemented the protections of the ECHR in 2003), it is not yet tested here in our domestic courts, but is settled case law of the ECtHR.

    If/when it ever does get tested here any judgements/declarations etc from the ECtHR must by law be judicially noted by the Courts in light of S4 of the European Convention on Human Rights Act 2003, as such any rights/obligations etc set out by the ECtHR must be taken as fact, the court must take "due account" of them, as noted by O’Flanagan in his book (and something which I have previously noted), from his book as outlined in my previous post:-
    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

    As such countries which apply the rights of the ECHR don't specifically have to enable any laws for that countries citizens to enjoy the rights and freedoms under it, many of rights under the ECHR which have been expanded upon by the ECtHR are not specifically written into law in most signatory countries.

    You don't need to take a photographer to the ECtHR if there is any potential breach, you could take them to the Irish courts (and indeed you have to before any possible ECtHR avenue opens), the Irish courts must make their judgement with regards to the protections afforded by the ECHR and any applicable tests, opinions, rights or obligations etc established under the jurisprudence of the ECtHR, something for example the UK courts dis in the Campbell case. In other words just because it is not written into domestic law an Irish court can not say there are no image rights under the ECHR, the ECtHR has already determined there are, rather an Irish court would need to recognise such rights can exist and balance any potential competing rights, the exact same way any Constitutional, statutory or common law rights are balanced.

    If you do finally make a case to the ECtHR then the state could be found to have failed in regards to it's positive obligations to you if they haven't actually provided protections for your rights in domestic law or protected/balanced any rights you are afforded under the ECHR in court.


  • Posts: 0 [Deleted User]


    Interesting case - I guess we do need further case law to establish a clear definition of what does and does not constitute a journalist.

    It's not about the person it's about the nature of the activity.


  • Registered Users, Registered Users 2 Posts: 8,922 ✭✭✭GM228


    ecoli3136 wrote: »
    It's not about the person it's about the nature of the activity.

    +1, it is not about defining a journalist, but rather a journalistic activity which of course can be undertaken by non journalists.


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