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Taking photos of others is it a crime?
Comments
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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.1 -
Deleted User wrote: »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.Deleted User wrote: »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.0 -
So the interesting question would be - what does it take to establish journalistic, academic, artistic or literary expression purpose?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?
Could almost every photo be established as artistic in some way?
Could every Twitter account be considered as journalistic?1 -
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.0 -
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?
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.0 -
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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.1 -
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.
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.0 -
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.1 -
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.
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.0 -
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?1 -
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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?
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:-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.0 -
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:]
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.1 -
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.
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?0 -
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.0 -
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 saysThis 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.0 -
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.0 -
AndrewJRenko wrote: »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.0 -
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