The human right to a private and family life - does it extend to the subject in an unofficial photo
I had an opportunity to think on whether the Human Rights Act 1998 and specifically article 8 the right to respect for private and family life can extend to an unofficial photograph. Human Rights derived from the Act start at day 1 and minute 1. So it appears to me that the article 8 clause is "subject" specific.
The first clause states "1 Everyone has the right to respect for his private and family life, his home and his correspondence" - the subject element being "his". Therefore ruminating I asked the question who owns the intellectual property right in a photo - the person who takes the photo or the person who is the subject. It would appear to me that the clear answer via the 1998 Act is the subject.
This got me thinking, most people in public life make an effort to afford the public access via official opportunies for photos to be taken, the Royal Family are a prime example. But the Human Rights Act 1998 does not differentiate between a person with a public life profile or a private person. It applies to everyone in the UK uniformly. Therefore, if an "unofficial" photo is taken by someone to include the Paperazzi and the HRA protects the "subject", does it follow that in order for the photo to be published that express consent is necessary from the subject of the photo.
This issue appears to me to be most pertinent where it concerns children. Children are called minors in the law and deemed not to have legal capacity to give express consent or make a legally binding contract. A guardian, parent, official representative must act on their behalf. It therefore follows that all children in the UK who are subjects in unofficial photos are protected by the HRA 1998 and article 8 and that it means that NO photo can be published in a newspaper or magazine taken by the Paperazzi or anyone without the express consent of the Guardian, parent or official representative.
I reminated further, is it possible that if the person or child is a UK citizen then as subject in an unofficial photo the legal jurisdiction is the UK regardless of whether the unofficial photo was taken in Europe or anywhere else in the world. The HRA and article 8 could potentially create a blanket ban on unofficial photos especially of children without express consent being requested and granted before publication.
There is a serious issue because the young Prince George is being targeted "unofficially" by paparazzi photographers, he is legally a minor, and the paparazzi are using methods that may entice him away from the care and protection of his guardian, parent or official reprepresentative. All children from a very early age are told about "stranger danger", but a puppy dog or a rabbit might not be perceived as threatening or a danger to a child. Most ordinary parents would be appalled if their child was enticed away from their care and protection perceived or otherwise, so if ordinary children can be covered by the HRA and article 8, so also should young Prince George and his sister Charlotte too specific to unofficial photos.
But there is a further issue - social media. Guardians, parents, relatives, friends of friends, official representatives post "unofficial" photos on social media - Facebook for example. Facebook and other social media provide a contractual right to privacy, but you have no control over who sees your unofficial photos. And here is the crux: if you publish unofficial photographs on Facebook can they then appear in a newspaper or magazine without your express consent? Is consent implied - they are (a) published and (b) circulated so as to be seen by many? But social media provides a contractual right to privacy as well as your having a statutory right to privacy via the HRA 1998. It could be argued that just because an unofficial photo has been "seen", it does not extend a right without express consent to be published in a newspaper or magazine. The Facebook contractual right extends to circulation of an unofficial photo only so far as it is published on Facebook, but the HRA is subject specific and provides a right to privacy in the intellectual ownership of the photo as a subject specific right and extends to publication beyond Facebook or any social media source so it follows that if an unofficial photo is sourced from a facebook or social media source that express consent is necessary and that there is no implied consent given by being engaged with Facebook or other social media source. This is because when you sign up to Facebook or any other social media site, you are contained within the four corners of that agreement and the right to privacy via the contract is restricted by the boundary of the four corners. So you can publish unofficial photos on Facebook but no further and if you then want to publish further the HRA article 8 kicks in and express consent is necessary because it is subject specific.
That is my reasoning and logic on the matter and I would hope that it could afford privacy to people especially children immediately as well as to people who are in the public eye who are decent enough to give official photograph opportunities but who should be protected from Paparazzi intrusion and publication of unofficial photographs. If the Paparazzi continue to take unofficial photographs then the responsibility should lie with the newspaper or magazine to secure official express consent to publish further or at all. No one should therefore have an unofficial photograph published without first having the ability to make it official per se.
An interesting article on what is occurring concerning Prince George and the seriousness of the issue concerning children is available (click here) http://www.bbc.co.uk/news/uk-33927354
Discuss.
The first clause states "1 Everyone has the right to respect for his private and family life, his home and his correspondence" - the subject element being "his". Therefore ruminating I asked the question who owns the intellectual property right in a photo - the person who takes the photo or the person who is the subject. It would appear to me that the clear answer via the 1998 Act is the subject.
This got me thinking, most people in public life make an effort to afford the public access via official opportunies for photos to be taken, the Royal Family are a prime example. But the Human Rights Act 1998 does not differentiate between a person with a public life profile or a private person. It applies to everyone in the UK uniformly. Therefore, if an "unofficial" photo is taken by someone to include the Paperazzi and the HRA protects the "subject", does it follow that in order for the photo to be published that express consent is necessary from the subject of the photo.
This issue appears to me to be most pertinent where it concerns children. Children are called minors in the law and deemed not to have legal capacity to give express consent or make a legally binding contract. A guardian, parent, official representative must act on their behalf. It therefore follows that all children in the UK who are subjects in unofficial photos are protected by the HRA 1998 and article 8 and that it means that NO photo can be published in a newspaper or magazine taken by the Paperazzi or anyone without the express consent of the Guardian, parent or official representative.
I reminated further, is it possible that if the person or child is a UK citizen then as subject in an unofficial photo the legal jurisdiction is the UK regardless of whether the unofficial photo was taken in Europe or anywhere else in the world. The HRA and article 8 could potentially create a blanket ban on unofficial photos especially of children without express consent being requested and granted before publication.
There is a serious issue because the young Prince George is being targeted "unofficially" by paparazzi photographers, he is legally a minor, and the paparazzi are using methods that may entice him away from the care and protection of his guardian, parent or official reprepresentative. All children from a very early age are told about "stranger danger", but a puppy dog or a rabbit might not be perceived as threatening or a danger to a child. Most ordinary parents would be appalled if their child was enticed away from their care and protection perceived or otherwise, so if ordinary children can be covered by the HRA and article 8, so also should young Prince George and his sister Charlotte too specific to unofficial photos.
But there is a further issue - social media. Guardians, parents, relatives, friends of friends, official representatives post "unofficial" photos on social media - Facebook for example. Facebook and other social media provide a contractual right to privacy, but you have no control over who sees your unofficial photos. And here is the crux: if you publish unofficial photographs on Facebook can they then appear in a newspaper or magazine without your express consent? Is consent implied - they are (a) published and (b) circulated so as to be seen by many? But social media provides a contractual right to privacy as well as your having a statutory right to privacy via the HRA 1998. It could be argued that just because an unofficial photo has been "seen", it does not extend a right without express consent to be published in a newspaper or magazine. The Facebook contractual right extends to circulation of an unofficial photo only so far as it is published on Facebook, but the HRA is subject specific and provides a right to privacy in the intellectual ownership of the photo as a subject specific right and extends to publication beyond Facebook or any social media source so it follows that if an unofficial photo is sourced from a facebook or social media source that express consent is necessary and that there is no implied consent given by being engaged with Facebook or other social media source. This is because when you sign up to Facebook or any other social media site, you are contained within the four corners of that agreement and the right to privacy via the contract is restricted by the boundary of the four corners. So you can publish unofficial photos on Facebook but no further and if you then want to publish further the HRA article 8 kicks in and express consent is necessary because it is subject specific.
That is my reasoning and logic on the matter and I would hope that it could afford privacy to people especially children immediately as well as to people who are in the public eye who are decent enough to give official photograph opportunities but who should be protected from Paparazzi intrusion and publication of unofficial photographs. If the Paparazzi continue to take unofficial photographs then the responsibility should lie with the newspaper or magazine to secure official express consent to publish further or at all. No one should therefore have an unofficial photograph published without first having the ability to make it official per se.
An interesting article on what is occurring concerning Prince George and the seriousness of the issue concerning children is available (click here) http://www.bbc.co.uk/news/uk-33927354
Discuss.
posted by Lesley McDade at 3:28 am
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