Man Photographed in Court Building and Photo Published Online ?

Electronic Writer

So, GM228, would you be of the opinion that when a person is in a court building and proceeding to leave through the front doors but he has not yet taken a step outside , permission by him must be given to use his picture in a newspaper or on a website?

Because, let's face it, we can go around the roundabout all year, I'll better be direct.

Irishphotodesk

Electronic Writer wrote: »

So, GM228, would you be of the opinion that when a person is in a court building and proceeding to leave through the front doors but he has not yet taken a step outside , permission by him must be given to use his picture in a newspaper or on a website?

Because, let's face it, we can go around the roundabout all year, I'll better be direct.

In as direct a way as I can say it, it's perfectly legal for the photographer to take the photo and legal for the newspaper to publish in print or online.... If the person is linked to the story published, if the person is not linked to the story then you would be looking at defamation.

If you re-read gm228's posts you will see that they are not talking about the situation where someone is leaving the court, they have gone off topic slightly to a general person walking around and were not discussing the situation your original post was referring to.

I have added a pic so that people might get a better understanding of the type of pic involved, I didn't take this pic but know who did and I'm using it with permission.

GM228

Irishphotodesk wrote: »

In as direct a way as I can say it, it's perfectly legal for the photographer to take the photo and legal for the newspaper to publish in print or online.... If the person is linked to the story published, if the person is not linked to the story then you would be looking at defamation.

If you re-read gm228's posts you will see that they are not talking about the situation where someone is leaving the court, they have gone off topic slightly to a general person walking around and were not discussing the situation your original post was referring to.

I have added a pic so that people might get a better understanding of the type of pic involved, I didn't take this pic but know who did and I'm using it with permission.

You need to re-read my post.

Oh and tell that to John Olav Egeland and Einar Hanseid of the Dagbladet and Aftenposten magazines respectively in Norway who were fined and convicted for taking pictures of a convicted woman leaving court, they took their case to the ECtHR and lost, the ECtHR held that Article 8 (the convicted persons right to privacy) trumped Article 10 (the magazines right to free speech).

Obviously each case will depend on the merits as I already noted, but the point being made is your assertion is not absolute.

This is not my opinion, it is fact backed up by ECtHR case law, also note the Council of Europe's Recommendation Rec(2003)13 of the Committee of Ministers to member states on the provision of information through the media in relation to criminal proceedings (in case anyone is unaware the ECtHR is an institution of the CoE):-

Principle 1 - Information of the public via the media

The public must be able to receive information about the activities of judicial authorities and police services through the media. Therefore, journalists must be able to freely report and comment on the functioning of the criminal justice system, subject only to the limitations provided for under the following principles.

Principle 8 - Protection of privacy in the context of on-going criminal proceedings

The provision of information about suspects, accused or convicted persons or other parties to criminal pro-
ceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention.

Particular protection should be given to parties who are minors or other vulnerable persons, as well as to
victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular considera-
tion should be given to the harmful effect which the disclosure of information enabling their identification
may have on the persons referred to in this Principle.

Principle 16 - Protection of witnesses

The identity of witnesses should not be disclosed, unless a witness has given his or her prior consent, the identification of a witness is of public concern, or the testimony has already been given in public. The identity of witnesses should never be disclosed where this endangers their lives or security. Due respect shall be paid to protection programmes for witnesses, especially in criminal proceedings against organised crime or crime within the family.

Principle 17 - Media reporting on the enforcement of court sentences

Journalists should be permitted to have contacts with persons serving court sentences in prisons, as far as this does not prejudice the fair administration of justice, the rights of prisoners and prison officers or the security of a prison.

Principle 18 - Media reporting after the end of court sentences

In order not to prejudice the re-integration into society of persons who have served court sentences, the right to protection of privacy under Article 8 of the Convention should include the right to protect the identity of these persons in connection with their prior offence after the end of their court sentences, unless they have expressly consented to the disclosure of their identity or they and their prior offence are of public concern again or have become of public concern again.

This was adopted by Ireland in 2003, and Principle 8 has been noted and cited by the ECtHR.

As you can see anyone in ongoing proceedings are afforded the protection of Article 8 of the ECHR weather they are a witness, accused, convicted etc, there are exceptions as noted above, but then it becomes a rights balancing issue, what is considered a public concern can be a tricky issue, people convicted of murder have seen Article 8 trump any public concern arguments so where the line is drawn is not clear. Realistically what we need is Irish case law and a subsequent ECtHR case on the issue dealing also with the margin of appreciation.

It seems to me the majority of the media* either simply don't know the legal issues or are ignorant to them, it is true that photography happens all the time, the problem is few have taken any action on the issue, those who have have shown the popular beliefs are incorrect, if anyone in the media do eventually fall foul of this they may also quickly get a lesson in another ECtHR concept known as "just satisfaction".

* To be fair I'd even suggest that many legally trained are not even fully aware unless they like me have a particular interest or specialty in this area of law. The jurisprudence of the ECtHR can be a very eye opening topic!

Irishphotodesk

Looking up those two names and using google translate to put it into English ... you appear to have neglected a detail.... that there was already a ban on that sort of photography in Norway, I assume you did know this, given your level of expertise in the area, and by the way, thanks for posting the information, it does open my eyes with regards to some of the work that I have done, I would entirely agree that many in the media operate on a do it until told it’s not legal, I would say that the vast majority of the media would not be able to comprehend law and it’s complex network of rules and exemptions.

“The newspapers deliberately chose to break the ban on photographing the accused on their way in and out of the courtroom, in order to clarify the boundaries of photography. They believed that the case was so special that it should grant an exemption from the ban“

Original Norwegian link:
https://www.dagbladet.no/kultur/veronica-orderud-ble-oppfattet-som-fritt-vilt/65341437

Translated version:
https://translate.google.com/translate?sl=no&tl=en&u=https%3A%2F%2Fwww.dagbladet.no%2Fkultur%2Fveronica-orderud-ble-oppfattet-som-fritt-vilt%2F65341437

As regards the OP and his assertion that privacy has been breached, it would appear he could be the type of person who could very well be your test case if they were to bring the matter further, it might help clarify the situation for members of the public, the legal profession and the media in Ireland.

GM228

Irishphotodesk wrote: »

Looking up those two names and using google translate to put it into English ... you appear to have neglected a detail.... that there was already a ban on that sort of photography in Norway, I assume you did know this, given your level of expertise in the area, and by the way, thanks for posting the information, it does open my eyes with regards to some of the work that I have done, I would entirely agree that many in the media operate on a do it until told it’s not legal, I would say that the vast majority of the media would not be able to comprehend law and it’s complex network of rules and exemptions.

“The newspapers deliberately chose to break the ban on photographing the accused on their way in and out of the courtroom, in order to clarify the boundaries of photography. They believed that the case was so special that it should grant an exemption from the ban“

Original Norwegian link:
https://www.dagbladet.no/kultur/veronica-orderud-ble-oppfattet-som-fritt-vilt/65341437

Translated version:
https://translate.google.com/translate?sl=no&tl=en&u=https%3A%2F%2Fwww.dagbladet.no%2Fkultur%2Fveronica-orderud-ble-oppfattet-som-fritt-vilt%2F65341437

As regards the OP and his assertion that privacy has been breached, it would appear he could be the type of person who could very well be your test case if they were to bring the matter further, it might help clarify the situation for members of the public, the legal profession and the media in Ireland.

Indeed I am aware of the ban (hence why I said they "were fined and convicted", it was a criminal offence under S131A of Norways Administration of Courts Act 1915), but the overriding point was that the ban was not incompatible with Article 10 and that Article 8 trumped Article 10.

Note from the link you provided:-

He notes that the Human Rights Court, in contrast to the Supreme Court, sees privacy considerations as the most important in the case.

Now don't get me wrong, there has and will be occasions were the argument goes the other way concerning topics of public interest, but the point is the notion (believed by so many) that anything is fair game is completely wrong.

I recommend anyone in the media to read and familiarise themselves with Rec(2003)13.

Irishphotodesk

GM228 wrote: »

Indeed I am aware of the ban (hence why I said they "were fined and convicted", it was a criminal offence under S131A of Norways Administration of Courts Act 1915), but the overriding point was that the ban was not incompatible with Article 10 and that Article 8 trumped Article 10.

But that doesn’t imply that the photography of an individual in a public space is an invasion of their privacy, it is as you have said above, “the ban in Norway was not incompatible with article 10 and article 8 trumped article 10” in the context of the case put before the court.

From what I can find on google:
article 8 is the right for a convicted criminal to have privacy.

Article 10 the right to publish information - subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society"

So article 8 trumps article 10 on this specific occasion, not that it will be the same in other cases....or am I completely off the mark?

GM228

Irishphotodesk wrote: »

But that doesn’t imply that the photography of an individual in a public space is an invasion of their privacy, it is as you have said above, “the ban in Norway was not incompatible with article 10 and article 8 trumped article 10” in the context of the case put before the court.

From what I can find on google:
article 8 is the right for a convicted criminal to have privacy.

Article 10 the right to publish information - subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society"

So article 8 trumps article 10 on this specific occasion, not that it will be the same in other cases....or am I completely off the mark?

As I said not every case will not be the same and depend on the facts of the case, but, the ECtHR held that member states have positive obligations to afford the protections to those involved in criminal proceedings as per Rec(2003)13.

The subject matter at issue in this case relates, on the one hand, to the right of the press under Article 10 of the Convention to inform the public on matters of public concern regarding ongoing criminal proceedings and, on the other hand, to the State’s positive obligations under Article 8 of the Convention to protect the privacy of convicted persons in criminal proceedings (see Principle 8 in the Appendix to Recommendation Rec(2003)13 of the Committee of Ministers to member States on the provision of information trough media in relation to criminal proceedings, quoted at paragraph 21 above) and its obligations under Article 6 of the Convention to ensure a fair administration of justice.

This is important as the court recognises positive obligations apply to member states as per Principle 8 which I outlined previously, a ban or otherwise on photography by the member state would in no way reduce member states obligations to those in criminal proceedings.

...Ghost...

GM228 wrote: »

As I said not every case will not be the same and depend on the facts of the case, but, the ECtHR held that member states have positive obligations to afford the protections to those involved in criminal proceedings as per Rec(2003)13.



This is important as the court recognises positive obligations apply to member states as per Principle 8 which I outlined previously, a ban or otherwise on photography by the member state would in no way reduce member states obligations to those in criminal proceedings.

What about civil proceedings? The quote only mentions criminal proceedings.

Electronic Writer

Irishphotodesk wrote: »

I have added a pic so that people might get a better understanding of the type of pic involved, I didn't take this pic but know who did and I'm using it with permission.

I see the picture but the people appear to be outside the building. Just sayin! A few steps earlier and the people would be beyond the doorframe and in the building.

Irishphotodesk

GM228 wrote: »

As I said not every case will not be the same and depend on the facts of the case, but, the ECtHR held that member states have positive obligations to afford the protections to those involved in criminal proceedings as per Rec(2003)13.



This is important as the court recognises positive obligations apply to member states as per Principle 8 which I outlined previously, a ban or otherwise on photography by the member state would in no way reduce member states obligations to those in criminal proceedings.

Did you just repeat the same statement twice ?

I understand what you are saying with regards to member state obligations .... but ... as you have said and I think it’s more important to emphasize the opening line of your first paragraph .... every case is different, in the case you highlighted the court found that publication was the incorrect thing to do, and as I have said in my previous post, the judgement made by the court does NOT mean that any other person photographed in a public place will have their privacy breached.

Electronic Writer

Irishphotodesk wrote: »

As regards the OP and his assertion that privacy has been breached, it would appear he could be the type of person who could very well be your test case if they were to bring the matter further, it might help clarify the situation for members of the public, the legal profession and the media in Ireland.

I doubt I've asserted that privacy has been breached unless I've relied on the opinion or facts given by someone else with this knowledge in the thread. Tell me where and I'll give thanks.



I also could not bring the matter further as I am not the person who was photographed leaving the court building. My interest is because I was looking at the newspaper website and by the lottery of life happened to see a person I know.

Irishphotodesk

Electronic Writer wrote: »

I doubt I've asserted that privacy has been breached unless I've relied on the opinion or facts given by someone else with this knowledge in the thread. Tell me where and I'll give thanks.



I also could not bring the matter further as I am not the person who was photographed leaving the court building. My interest is because I was looking at the newspaper website and by the lottery of life happened to see a person I know.

Apologies. You asked the question , which in my opinion had been answered and then technical points and side points were raised, feel free to tell the person you know that the European courts deem article 8 more important than article10 in the context of a convicted Norwegian person and the breach of a photography ban of people involved in court cases in that country was not overturned.

And let them make their decision on whether or not to pursue the matter.

It has been an interesting discussion but at this point we are going in circles, one person - with experience in the area of European courts - cites one case and admits that each case is different but uses this to make a point that members of the public can claim privacy in public places (am I wrong with this?)

If you believe rights were breached, tell the person to take a case and maybe we can all learn what the courts think - given the circumstances of this person's case.

Peregrinus

It’s relevant that there was a law in Norway banning the taking of the photographs, so the sequence of events was: Photographer is penalised under Norwegian law -> photographer challenges law in the ECHR -> photographer loses.

How would this map on to the Irish situation that we are discussing here? Let’s assume that the taking of photographs by a photographer outside the court building is not banned by any court rule or court order. Is there any law which would ban or restrict the taking of the photograph? Well, GM228 suggests yes, GDPR has this effect. I think this gives rise to two alternative scenarios:

Option 1: photographer is penalised in some way under GDPR -> photographer challenges this in ECHR. This looks a bit like the Norway case, except that the law being challenged is a different law, and so the considerations in balancing right to privacy versus right to free speech may not play out the same way, so the photographer won’t necessarily lose. But he might lose.

Option 2: Irish authorities disagree with GM228 and take the view that GDPR does not prohibit the taking of this photograph, or for some other reason decline to take action against the photographer. Aggrieved person in the photograph then challenges this decision in the courts, and takes it all the way to ECHR. We’ve now got quite a different case, once in which the photographer is not a party. But the core issue is similar; does GDPR generally prohibit the taking of an individual’s photograph without his consent and, if so, is that general ban compatible with the Convention, taking into account the rights that must be balanced?

If GDPR has the result that GM228 suggests, that looks like it could be a much wider ban on the taking of photographs that the ban under Norway’s Administration of Courts Act, which I haven’t read but which I’m guessing only restricts photography in courthouses, or of people involved in court cases. And of course the wider the ban, the hard it’s going to be to justify in light of the freedom of speech/public interests arguments. So just becaus they found the Norwegian law justified by the privacy arguments, if GDPR is much wider than the Norwegian law it doesn’t follow that they will find GDPR to be justified. We’ll have to wait for someone to bring the case.

GM228

Peregrinus wrote: »

It’s relevant that there was a law in Norway banning the taking of the photographs, so the sequence of events was: Photographer is penalised under Norwegian law -> photographer challenges law in the ECHR -> photographer loses.

How would this map on to the Irish situation that we are discussing here? Let’s assume that the taking of photographs by a photographer outside the court building is not banned by any court rule or court order. Is there any law which would ban or restrict the taking of the photograph? Well, GM228 suggests yes, GDPR has this effect. I think this gives rise to two alternative scenarios:

Option 1: photographer is penalised in some way under GDPR -> photographer challenges this in ECHR. This looks a bit like the Norway case, except that the law being challenged is a different law, and so the considerations in balancing right to privacy versus right to free speech may not play out the same way, so the photographer won’t necessarily lose. But he might lose.

Option 2: Irish authorities disagree with GM228 and take the view that GDPR does not prohibit the taking of this photograph, or for some other reason decline to take action against the photographer. Aggrieved person in the photograph then challenges this decision in the courts, and takes it all the way to ECHR. We’ve now got quite a different case, once in which the photographer is not a party. But the core issue is similar; does GDPR generally prohibit the taking of an individual’s photograph without his consent and, if so, is that general ban compatible with the Convention, taking into account the rights that must be balanced?

If GDPR has the result that GM228 suggests, that looks like it could be a much wider ban on the taking of photographs that the ban under Norway’s Administration of Courts Act, which I haven’t read but which I’m guessing only restricts photography in courthouses, or of people involved in court cases. And of course the wider the ban, the hard it’s going to be to justify in light of the freedom of speech/public interests arguments. So just becaus they found the Norwegian law justified by the privacy arguments, if GDPR is much wider than the Norwegian law it doesn’t follow that they will find GDPR to be justified. We’ll have to wait for someone to bring the case.

I didn't mention GDPR, the case is based on rights afforded by the ECHR, not the EUs GDPR, though GDPR could also be a consideration if someone took a case based on EU law to the ECJ.

The issue is the general principles of Article 8s application to anyone including those in court or in a public place, the reason why I stated the law in Norway is irrelevant is because you need to take account of Rec(2003)13 also in light of Articles 8 and 10. It's application is not limited to states with a ban in place, it applies to all member states.

It is also worth noting that Article 10 does not give the press or anyone a greater right to report than Article 8 gives a right of privacy, they are equal in all aspects so there are now equal competing rights at play, when these competing rights were tested in Norway Article 8 won, it is correct to say (as I have acknowledged previously) that not every case is the same, but it shows that freedom of the press to photograph anything including activities in public is far from absolute. Other settled case law from the ECtHR has held that when the media publishes photos photos that the protection of the rights and reputation of others takes on particular importance.

The landmark Hannover case has already confirmed Article 8 applies in a public place, it was not limited just to Germany or based on any national laws, it was a general application of principles of ECHR rights afforded to people in public places.

The Norway case actually cited it confirming the application of the principles to criminal proceedings:-

However, under the terms of Article 10 § 2, the exercise of the freedom of expression carries with it “duties and responsibilities”, which also apply to the press. In the present case this relates to protecting “the reputation or rights of others” and “maintaining the authority and impartiality of the judiciary”. These duties and responsibilities are particularly important in relation to the dissemination to the wide public of photographs revealing personal and intimate information about an individual (see Von Hannover v. Germany, no. 59320/00, § 59, ECHR 2004‑VI; Hachett Filipacchic Associés c. France, no 71111/01, § 42, 14 juin 2007). The same applies when this is done in connection with criminal proceedings (see Principle 8 in the Appendix to Recommendation Rec(2003)13 of the Committee of Ministers to member States on the provision of information trough media in relation to criminal proceedings, quoted at paragraph 21 above).The Court reiterates that the notion of private life in Article 8 of the Convention extends to a person’s identity, such as a person’s name or a person’s picture (Von Hannover , cited above, § 50; see also Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002).

The court has essentially confirmed the privacy expectations as contained in Rec(2003)13, that is a general statement which I would not consider only applicable to Norway or states with bans in their national laws, all member states including Ireland signed up to Rec(2003)13 and it's principles. Remember case law of the ECtHR is not just limited in application to the state involved, the principles held when in general apply to all member states and must be judicially noticed.

But as I said ultimately we really need an Irish test case followed by an ECtHR judgement and perhaps an ECJ case based on GDPR issues for good measure before we have a definitive answer here.

GM228

Irishphotodesk wrote: »

It has been an interesting discussion but at this point we are going in circles, one person - with experience in the area of European courts - cites one case and admits that each case is different but uses this to make a point that members of the public can claim privacy in public places (am I wrong with this?)

I never said it was absolute in the context of a court case, that will be dependant on the circumstances, but as has been shown an expectation of privacy can apply, it is very much dependant on the facts, there are tests by the ECtHR which the media would need to satisfy if a case were taken.

However, as per the Hannover case an expectation of privacy in public places whilst enjoying everyday life is the case. Hannover is regularly cited by the ECtHR as settled case law in most Article 8 or 10 cases.

Peregrinus

So would the argument basically be (a) there is a right to privacy which is infringed by the taking of these photographs, and (b) in so far as Irish law fails to vindicate that right by providing a remedy for those whose privacy is invaded by the photographs, the aggreived subjects of the photographs have remedy against Ireland?

GM228

Peregrinus wrote: »

So would the argument basically be (a) there is a right to privacy which is infringed by the taking of these photographs, and (b) in so far as Irish law fails to vindicate that right by providing a remedy for those whose privacy is invaded by the photographs, the aggreived subjects of the photographs have remedy against Ireland?

I would think so if the balancing of rights is held in the applicants favour, then the state could be found to have failed in regards to it's positive obligations.

Irishphotodesk

Peregrinius, there's an exemption in GDPR for journalism I believe its 80.2 or 80.5 something like that.

If it would satisfy the original poster, GM228 could give their learned view/opinion on if a person - whom a journalist was writing a story on - exiting the CCJ , in a direct line of sight to a photographer but inside the exterior pane of glass/door ... Would they consider this to be a breach of privacy as per their knowledge on the matter.

Specifically in the case mentioned by the OP, do you believe a person's rights to privacy were invaded?

Electronic Writer

Irishphotodesk wrote: »

If it would satisfy the original poster, GM228 could give their learned view/opinion on if a person - whom a journalist was writing a story on - exiting the CCJ , in a direct line of sight to a photographer but inside the exterior pane of glass/door ... Would they consider this to be a breach of privacy as per their knowledge on the matter.

It would.


But just to clarify, in the situation where I know the person , the line of site of the photographer is not obstructed by glass as the person is practically about to take his first step through the door to the outside.

GM228

Irishphotodesk wrote: »

Peregrinius, there's an exemption in GDPR for journalism I believe its 80.2 or 80.5 something like that.

If it would satisfy the original poster, GM228 could give their learned view/opinion on if a person - whom a journalist was writing a story on - exiting the CCJ , in a direct line of sight to a photographer but inside the exterior pane of glass/door ... Would they consider this to be a breach of privacy as per their knowledge on the matter.

Specifically in the case mentioned by the OP, do you believe a person's rights to privacy were invaded?

It's an exemption under Article 85 of GDPR. A case under the ECHR to the ECtHR would possibly be easier made than one under GDPR to the ECJ.

There is no straight yes or no answer to give, as I have said multiple times each case depends on the facts unique to that case and there are so many variables at play to give a definitive answer or opinion.

The only proper answer to give is "it may be a breach, but then again it may not be", to say it is definitely a breach would be the wrong answer.