Articles
Is it Possible to Protect Your Image
 | One of the components of the right to privacy is also a person's rights to their own image. I found and republished on my blog an article relating to image protection. Every photographer should read this. |
Rights.
"One of the components of the right to privacy is also a person's rights to their own image. Analyzing the European Court of Human Rights practice, it can be concluded that photographing or filming without a person's consent by itself, without evaluating the circumstances of a specific situation, cannot be considered a restriction of the right to privacy. In order to establish whether a person's rights to their own image and therefore also the right to privacy have been violated, several circumstances need to be evaluated," concludes the author of the mentioned work - the current head of the Human Rights Department of the Ombudsman's Office, and during the development of the research even then a representative of the State Human Rights Office Mg. iur. Anita Kovaļevska. The mentioned research was created with the purpose of clarifying what circumstances need to be taken into account when photographing or filming a person and using their image, so that the right to privacy is not violated, as well as an attempt to find an answer to the question of whether in Latvia effective protection of the right to privacy is ensured. For clarity it should be added that the mentioned research was developed in 2005 and presented to a wider audience already a year later, however the findings and conclusions have not lost their relevance. In this work, the author has more broadly analyzed both persons' rights to privacy, and principles developed in the practice of the European Court of Human Rights (ECHR), as well as researched the situation in Latvia - normative regulation and court practice in such cases, the number of which even now, more than a year later, is still insignificant. Furthermore, the research also included a survey of 256 respondents to clarify the opinions of these persons about being photographed or filmed and the use of obtained images without their own consent (overall respondents were negatively disposed both against any photography and filming, and against the use of their images without their own permission).There is No Universal Definition
First analyzing more broadly what everyone's rights to privacy are, A. Kovaļevska concludes that it is practically impossible to provide a universal and complete definition of these rights. Similarly as the author points out, also ECHR judge Dīns Špīlmans, being in Latvia, during this year's Jurists Day events in his lecture on freedom of speech and person's rights to privacy emphasized that the concept of private life is very broad and it is impossible to provide a concrete definition. However, according to D. Špīlmans, the ECHR considers that a person's image definitely belongs to the understanding of a person's private life and it should be protected against unjustified use that does not correspond to the interests of a specific individual. With such a finding, a fundamental question arises - can photographing and filming by itself, regardless of any circumstances, be a violation of a person's right to privacy? Does consent of the person always need to be obtained for them to be photographed or filmed? Looking for answers to these questions, A. Kovaļevska cites as an example the Court of Appeal of the United Kingdom, which concluded: photographing a person without their consent, without using physical force, cannot be considered a violation of person's rights. Also ECHR practice indicates that photographing or filming without the relevant person's consent by itself, without evaluating the circumstances of a specific situation, cannot be considered a violation of the right to privacy. Thus, analyzing already specific cases that have come before the ECHR, A. Kovaļevska concludes that in cases related to a person's image, the ECHR has analyzed specific circumstances, rather than establishing a human rights violation just because a person was photographed or filmed without their permission.How to Establish a Violation
Therefore, in order to establish whether a person's rights to their own image and therefore also the right to privacy have been violated, several circumstances need to be evaluated. First, the place where the image was taken is essential. For example, photographing or filming in a public place without the person's own consent does not restrict their right to privacy, however if this was done, the person being in their home (regardless of whether the photographer photographed from a distance or entered inside), this is a violation of the right to inviolability of the home and therefore also of the right to privacy in a broader sense. However, the author emphasizes that not always can all places unequivocally be divided into public places and those belonging to the home (such can also include hotel rooms, boats, etc.). For example, in the case Niemietz v. Germany the ECHR recognized that the right to inviolability of the home can also apply to office premises. Obviously, the ECHR pointed out that there are work-related activities or commercial activities that a person can also carry out in their own home, and similarly there are also work or commercial related cases that can be handled in office premises. Therefore it cannot be unequivocally asserted whether in the understanding of the European Convention on Human Rights office premises are a public place or also belong to the home. In this context, it can be added that, according to the ECHR, the interpretation of the concepts of "private life" and "home" could lead to unequal treatment in cases when a person's professional activities and private life cannot be distinguished. Therefore, as the research author points out, in order to avoid possible consequences of such formal classification, it is necessary to evaluate whether in the specific circumstances, regardless of the formal belonging of the place of photography or filming, the person had grounds to expect privacy of their activities. If such grounds exist, the right to privacy may be violated by photographing or filming a person even in a place that can formally be considered public. Second, it is also necessary to evaluate the content of the image - whether what is visible in it is a reflection of the person's private life or a public event, occasion. Photographing or filming a person in a public place, participating in a public event, as well as publishing such person's images should not be evaluated as a violation of the right to privacy. However, according to A. Kovaļevska's opinion, distinguishing public events from private life events cannot be considered too narrowly and as a reflection of private life only what happens in a person's home. Therefore, in her opinion, the most essential thing to distinguish private life events and public occasions is not the place of these events, but whether in these events participation was invited or the broader public was otherwise involved. Third, when evaluating a possible violation of a person's rights to their own image, it is also necessary to analyze how the specific image is used - intended for restricted use or made accessible to the broader society, most often this happens by publishing the image in a newspaper or showing on television. Conversely, publishing an image in the press is closely related to the rights to freedom of expression guaranteed by Article 10 of the European Convention on Human Rights. However, this does not mean that the press can publish any person's image without their consent. Furthermore, if the image reflects the person's private life, it is necessary to evaluate whether its publication brings any benefit for discussion of socially significant events. Thus the research author considers that publishing an image reflecting a person's private life (even of a politician) without the person's consent is not permissible, if the sole purpose of publication is satisfying society's curiosity about a person's private life. It should be added that a person's image can also be used in the commercial sphere, and here freedom of expression is protected to a lesser degree. Usually, when talking about the commercial sphere in connection with a person's image, we talk about advertising. There images most often are used that were obtained in a lawful manner and which do not reflect the person's private life events. Therefore there is also an opinion that in such cases we should talk not about rights to privacy but about commercial rights or property rights.Lack of Scientific Articles and Court Practice
Analyzing the situation specifically in Latvia - both normative regulation and court practice, the research author acknowledges that our normative acts regulate questions about a person's rights to their own image very generally. Similarly there is insufficient court practice and scientific articles on this topic, although it should be acknowledged that after the development of the research positive changes have occurred in this area, for example with publications and reports at conferences, as well as with the recently defended doctoral dissertation, Inese Lībiņa has made her contribution to the analysis and research of the mentioned topic. Similarly, it should be taken into account what was recognized in a ruling of the Constitutional Court, from which it follows that ECHR practice can be binding in the realization of human rights in Latvia in cases related to the use of a person's image. When evaluating the situation in the field of normative regulation, A. Kovaļevska points out that several Latvian laws regulate photography, filming and the use of photographed and filmed material. For example, this is how the rights of police officers and other state officials to photograph or film in specific situations are defined. Procedural laws regulate these questions during court sessions. Similarly, the use of images is provided for in the Advertising Law, clause 4 of the second part of Article 4 of which states that in advertising it is forbidden to depict, use or otherwise feature a physical person without their consent. Conversely, when talking about court practice, the author mentions and more broadly analyzes specific court rulings. Although A. Kovaļevska points out that courts still do not allow speaking about stable practice in such cases, some conclusions can still be drawn, and one of them: in 2005 a person in Latvia could protect themselves against unauthorized use of an image, if thereby their honor and dignity were violated. Conversely now, since the development of the research significant time has passed, with the court case of Kristīne Dupāte against magazine "Privātā Dzīve" the ruling of the court of first instance allows hoping that a person can protect their rights not only when publication of the image violated their honor and dignity, but also when there has been disproportionate interference in private life.Sannija Matule