Photographs of individual using mobile phone cameras etc.

windhover

Hi Folks,

Does anybody know if there is any specific legislation forbidding the use of mobile phone cameras etc. to take images of individuals either against their will or unbeknown to them?

I know that gyms etc. often prohibit the use of camera phones but is this the result of a specific law or is just a local arrangement?

Thanks!

johnnyskeleton

The common law of England has very recently (last week, I think) decided that taking photos of someone (in particular a celebrity's child) covertly, without consent and in circumstances where they would not have consented had they known, was a breach of privacy (there were previous similar cases but they legally quite strange). Link

I don't think there have been any authoritive cases on this point in Ireland, but it is possible that they might follow the UK case.

Planxty

Remember in the news recently there was an incident in a unisex gym whereby a man reached under a changing stall, video recording the woman changing.

He was caught in the act but couldnt be charged with the crime (the legislation I don't recall) because the woman, at the time he recorded, was wearing underwear, and was not naked (which was required for the legislation to be enforced). Quite funny..

johnnyskeleton

Planxty wrote: »

He was caught in the act but couldnt be charged with the crime (the legislation I don't recall) because the woman, at the time he recorded, was wearing underwear, and was not naked (which was required for the legislation to be enforced). Quite funny..

Meanwhile the woman was charged with indecent exposure and sent to prison.

helios

Being a photographer, if you're in a public area i.e. the street, anything is fair game. Technically you don't even have to erase the image if asked, though some would call it being an arse if you don't. If you're in a private setting i.e. gym, it's up to the discresion of the owners though there are usually places where taking shots is a big no-no, like toilets and changing rooms...

johnnyskeleton

helios wrote: »

Being a photographer, if you're in a public area i.e. the street, anything is fair game. Technically you don't even have to erase the image if asked, though some would call it being an arse if you don't. If you're in a private setting i.e. gym, it's up to the discresion of the owners though there are usually places where taking shots is a big no-no, like toilets and changing rooms...

That could all change if it is recognised by the courts as a breach of privacy (although the breach of privacy probably comes when you do something with the photo e.g. publish it).

Deacon Blues

Check out this link. This is a list of photographers rights, and is specific to Ireland. Basically, anybody has a right to take photographs of any person if they are in a public place.

http://www.digitalrights.ie/2006/05/09/photographers-rights/

johnnyskeleton

Deacon Blues wrote: »

Check out this link. This is a list of photographers rights, and is specific to Ireland. Basically, anybody has a right to take photographs of any person if they are in a public place.

http://www.digitalrights.ie/2006/05/09/photographers-rights/

Even there it says:

Taking photographs of people in public is generally allowed - however, an exception is made where the subject would have a reasonable expectation of privacy. You’re perfectly entitled to take a photograph of someone walking down the street - but hiding in a tree to take a photo of them in their home may get you into trouble.

I would also seriously question the correctness of whether you are entitled to take a photograph of someone walking down the street in the light of the J.K. Rowling case.

windhover

Thanks for the responses so far they've been very informative. The link to Digital Rights Ireland was quite helpful but does lead me to another question regarding photographs taken in a public place - the following quote is taken from the site;

Taking photographs of people in public is generally allowed - however, an exception is made where the subject would have a reasonable expectation of privacy.

How does one define a 'reasonable expectation of privacy?'

For example, if I'm at a local coffee shop with a friend and seated at the window,and someone takes a photograph of me using a mobile phone camera from acrros the road was i entitled to a reasonable expectation of privacy or was I fair game because I was seated at a window?

TJM

johnnyskeleton, I'm not sure that I agree as to the effect of the JK Rowling decision (Murray v. Big Pictures). Several points about that decision are important. First, it is not in any way new in saying that a right of privacy may attach in public places. This has been clear at the very latest since Peck. Secondly, the court did not decide that the simple taking of the picture itself was in breach - instead (paras. 17-18) it held that:

On the claimant's case, which must be taken as true for present purposes, it was the clandestine taking and subsequent publication of the Photograph in the context of a series of photographs which were taken for the purpose of their sale for publication, in circumstances in which BPL did not ask David's parents for their consent to the taking and publication of his photograph. It is a reasonable inference on the alleged facts that BPL knew that, if they had asked Dr and Mrs Murray for their consent to the taking and publication of such a photograph of their child, that consent would have been refused.

Moreover, on the assumed facts, this was not an isolated case of a newspaper taking one photograph out of the blue and its subsequent publication. This was at least arguably a very different case from that to which Baroness Hale referred in her now well-known example (at [154] of Campbell) of Ms Campbell being photographed while popping out to buy the milk. The correspondence to which we have referred shows that a news agency, a freelance photographer and two newspapers had photographers outside the Murrays' house in the period before publication of the Photograph and a schedule exhibited to the particulars of claim shows that this was not an isolated event.

Thirdly, the court laid great stress on the fact that these were targeted photos of a child and their publication presented the risk of further media attention and intrusion (para. 45 et seq.).

Consequently, I would be wary of extending this to the case of non-targeted photography (as distinct from publication of photographs) of adults in public places, and I would not read it as creating difficulties for ordinary street photography.

As regards tabloid photos of famous children, it seems to me that this decision doesn't go much further than the approach which our Data Protection Commissioner has already taken in respect of publishing photos of the children of celebrities. (I've blogged about that here.)

I do, though, agree with you that it might be time to update the DRI advice. The difficulty is that these cases are so fact-specific that general guidelines can be misleading.

Usual caveats apply - this is not legal advice and does not create a lawyer client relationship. Your mileage may vary. Investments may go down as well as up.

johnnyskeleton

TJM wrote: »

johnnyskeleton, I'm not sure that I agree as to the effect of the JK Rowling decision (Murray v. Big Pictures). Several points about that decision are important. First, it is not in any way new in saying that a right of privacy may attach in public places. This has been clear at the very latest since Peck. Secondly, the court did not decide that the simple taking of the picture itself was in breach - instead (paras. 17-18) it held that:Thirdly, the court laid great stress on the fact that these were targeted photos of a child and their publication presented the risk of further media attention and intrusion (para. 45 et seq.).

To take your second point first, it reads to me that they found both the taking of the photos and the subsequent publishing that were breaches of privacy (although I did say that the breach of privacy probably comes when you do something with the photo e.g. publish it). Paras 17-18 are not the dicta, that starts at para 45, and para 57 reads:

It seems to us that, subject to the facts of the particular case, the law should indeed protect children from intrusive media attention, at any rate to the extent of holding that a child has a reasonable expectation that he or she will not be targeted in order to obtain photographs in a public place for publication which the person who took or procured the taking of the photographs knew would be objected to on behalf of the child. That is the context in which the photographs of David were taken.

That suggests to me that the act of targeting a person (a child in particular) in a public place in circumstances where it is for the purpose of subsequent publication, and not the act of subsequent publication, that is the breach of privacy.

Re the first point: what's new about it is not the public element but rather the recognition that the reasonable expectation of privacy is a right enjoyed by all, and it is not necessary that the breach be highly offensive in order to be actionable. Instead, the test is 1) whether in the circumstances the person had the right to privacy and 2) if so, whether on balance the photographer's right to freedom of expression justifies the breach.

This seems to be the clearest test for this type of case so far, and I believe it is the correct one.

Re your third point: that's what the case was about. The circumstances of the taking of the photograph, in particular, the use to which it is subesquently put, is what is all important.

TJM wrote: »

Consequently, I would be wary of extending this to the case of non-targeted photography (as distinct from publication of photographs) of adults in public places, and I would not read it as creating difficulties for ordinary street photography.

By all means be wary. Trust your caution. Your circumspection does you credit. But the original poster was asking about the photographing of an individual, and I don't think I'm overstepping the mark when I say he/she is asking about the photographing of specific individuals (i.e. targeting). The reason the circumstances are important is because there is a massive difference between capturing a person's imagine incidentally, and capturing it deliberately.

TJM wrote: »

As regards tabloid photos of famous children, it seems to me that this decision doesn't go much further than the approach which our Data Protection Commissioner has already taken in respect of publishing photos of the children of celebrities. (I've blogged about that here.)

The data protection commissioner is not a court. Furthermore, I would imagine that damages for a tortuous breach of privacy would be significantly higher than damages for breach of the data protection act. (By the way, you do realise that citing yourself as an authority is the best way to scupper any argument, don't you).

TJM wrote: »

I do, though, agree with you that it might be time to update the DRI advice. The difficulty is that these cases are so fact-specific that general guidelines can be misleading.

Forgive my ignorance but what is the DRI advice?

TJM wrote: »

Usual caveats apply - this is not legal advice and does not create a lawyer client relationship. Your mileage may vary. Investments may go down as well as up.

Hmmm...

Deacon Blues

It seems to me from a lay persons point of view that the taking of photographs, in general, is allowed. However, the subsequent use of the photographs, particularly their publication is where the minefield appears.

There is considerable debate on various photography fora about the "criminalisaton" of photography. Particularly in the US, "security" and "terrorism" will usually come into the conversation when a photographer (and I use the term broadly, as someone taking a photograph, be they amateur or professional ... but usually they'll be using a "professional" looking piece of kit) is hassled, be it by a member of the public, a rent-a-cop, big city cop, or Billy Bob from the Sheriffs department. Particular problems arise when people are taking photos of aircraft at airports, trains, bridges, buildings or in or on subways. Of course, taking a photograph of a military or nuclear facility risks a shoot first question later response.

Given the ubiquity of camara phones, the latest models of which are quite capable, and other resources such as GoogleEarth, I somehow can't see "terrorists" needing to openly go and draw attention to themselves with telephoto lenses. However, the fact is that there is a major clampdown on photography, particularly in the US but also in the UK and to a lesser degree in other European countries, hence the huge amount of "photographers rights" pages on the Internet.

The OP specifically asks about camera phones. I'm not sure whether the equipment used to take the photograph would have a bearing on any subsequent decision on the legality of the photograph, but it could be argued that a mobile phone can been seen as being more "covert" than an SLR type camera, and possibly could be compared with taking a close up photo from a long distance with a telephoto lens.

Deacon Blues

johnnyskeleton wrote: »

Forgive my ignorance but what is the DRI advice?

That would be the Digital Rights Ireland pamphlet linked above.

Tenger

Deacon Blues wrote: »

It seems to me from a lay persons point of view that the taking of photographs, in general, is allowed. However, the subsequent use of the photographs, particularly their publication is where the minefield appears.

I am interested in this aspect of it. A friend (a teacher) has recently been photographed without her knowledge on a school field trip. She had been joining the students in a bit of a joke (at no-ones expense) While doing so a student took a photo. Now a parent has complained that this photo in on someones Bebo/MySpace (not sure) page. he thinks it is unprofessional. The teacher involved has the best relationship of all staff with this class group,due to being able to get them onside with her. And to my mind it was not in the classroom so was not unprofessional teaching.

How about this? Unexpected photo taking without knowledge (not exactly covert) and then publishing the image without warning or consent?

Deacon Blues

Bramble wrote: »

How about this? Unexpected photo taking without knowledge (not exactly covert) and then publishing the image without warning or consent?

I'm not a professional, but I can't see any grounds for complaint. The photo has been published, but there is no commercial aspect, so it's either editorial or art. If the photographer were making money from it, they would need a signed model release from the subject before selling or publishing. If the subject were misrepresented by the photo, they would have a case. Here, neither seems to be the case, so there is no legal complaint.

One point about your post. You say that the photo was on a school field trip, and because it wasn't in the classroom, it wasn't unprofessional. I think that that is incorrect, (the reasoning, not the actuality ... without knowing the circumstances I won't comment on that).

The teacher was on an official school trip, and while field trips tend to be more relaxed and informal, it is still part of the school day, and bound by the same professional standards. That said, I can remember school trips I went on (back in the seventies !!!!), and we saw a COMPLETELY different side to teachers to the usual classroom personality. Some of them were almost human !!.