Privacy, photographs, and the European Court of Human Rights
01/12/2020
We know the phrase “do they have a reasonable expectation of privacy?” all too well. And there’s been a recent ruling by the European Court of Human Rights (ECHR) which is a helpful reminder of the principles relating to Article 8, colloquially known as ‘the right to Privacy’.
The case originated from Latvia and concerned the publication of images in a celebrity-focused magazine, both inside and on its front cover. The images were of the partner of the chairperson of a political party leaving hospital with her newborn baby, and were taken covertly.
The mother of the baby brought a claim for breach of Article 8. The case has been ongoing for some years: the Latvian Courts initially found in favour of the Claimant, but the Judgment was overturned by a more senior Court, and the ECHR recently upheld the original decision that the publication was a violation of Article 8.
Although the photos in question were taken in a public place and were not humiliating, the ECHR found that there was no proper justification for the publication of the photos.
It is well established that privacy rights under Article 8 must be balanced against publishers’ rights to freedom of expression under Article 10. When conducting the balancing exercise you must take into account the public interest (not interest to the public), the circumstances in which the photos were taken, and the notoriety and previous behaviour of the person concerned, among other factors.
The ECHR decided in this case that the superior Latvian court had not given sufficient attention to the fact that the publication of the photographs made a very limited contribution to issues of public importance, and it had not given adequate weight to the sensitive nature of the event they captured.
The ruling of the ECHR is useful as it reiterates that just because someone has conducted interviews with the media in the past, as the Claimant had in this case, it does not mean that they forfeit their right to privacy. Nor does it mean that just because photographs are taken in a public place they are not a violation of Article 8 – the private nature of what the photograph depicts is of great significance. The ECHR also considered whether it was necessary to use the photographs to give credibility to the story that the baby had been born, and found it was not.
A key distinction, which would turn on the facts of any particular case, is that reporting the birth had taken place might be legally sound, but photographing the mother and child leaving hospital covertly probably won’t be.
Most of the readership of this article are regulated by IPSO and therefore bound by the Editors’ Code of Conduct, which also addresses the right to privacy and the use of clandestine devices or subterfuge.
Of course, this is a European Court of Human Rights case, and we know that we are leaving the European Union on 31st December. However, being under the remit of the ECHR is a result of our membership of the Council of Europe, and not the European Union. So as it stands, case law from the ECHR will still apply post-Brexit.