Out-Law News | 09 Dec 2008 | 2:55 pm | 4 min. read
A privacy expert said that in the UK only some photographs taken in public are subject to legal controls.
"I was absolutely staggered when I turned on the TV to see myself in a film about fat people," said Knezic, who is suing TV station HTV for £10,000. "I want to show that attacks on human dignity like this cannot be tolerated," she said.
In the UK, it is not clear whether or not the Data Protection Act would offer protection in these circumstances, according to Rosemary Jay, a privacy law expert with Pinsent Masons, the law firm behind OUT-LAW.COM.
"There is a question over whether this footage would be personal data in the hands of the media in the UK, without any name or other particulars," said Jay. "I would say that as she could be 'identified' in the sense that it is clear that she can be recognised as a unique human it should be regarded as persona data but as it would not be possible from the footage to go to her house and find her a UK court might decide that the footage alone was not personal data."
Jay said that in other EU member states, the outcome could be different. Although each country has implemented the same Data Protection Directive, they did so in different ways. The definition of 'personal data' in the Directive refers to "an identified or identifiable natural person". The UK's Data Protection Act does not refer to identifiable people in its definition – it only refers to individuals who "can be identified from information in the possession of the controller or likely to come into his possession".
"A UK court might decide that the photograph alone was not personal data," said Jay.
Even if the footage deemed to be personal data, the Act contains a special exemption for journalism which may allow its use if that was deemed to be in the public interest. But if its use caused distress, the Act allows the subject to claim damages.
Jay pointed to a case in Hong Kong, which has a similar law. A woman was photographed without her knowledge and featured in a magazine article. She was not named but the woman's dress sense was ridiculed and the photograph was captioned 'Japanese Mushroom Head'. She complained to the Hong Kong privacy commissioner. However, the Court of Appeal ruled that the publisher had not collected personal data. "What is crucial here is the complainant's anonymity and the irrelevance of her identity so far as the photographer, the reporter and Eastweek were concerned," wrote a judge in the case.
If a court in the UK considered the invasion of privacy to be sufficiently serious, it could rule that human rights were breached. But it is not clear in the circumstances of the obesity documentary that there is such an invasion, Jay said.
British courts have considered various privacy complaints, most of them involving celebrities.
Supermodel Naomi Campbell won a landmark ruling which found that pictures of her leaving a Narcotics Anonymous meeting infringed her human rights. The House of Lords acknowledged in that case, though, that if the photographer had merely caught her going "out to the shops for a bottle of milk" she would not have had a claim. It acknowledged that readers would be interested in how Campbell may look when doing something so ordinary.
Non-celebrities may enjoy greater protection than celebrities, though.
The European Court of Human Rights has ruled that disclosure of CCTV footage of a man attempting suicide on a street was a disproportionate and unjustified interference in his private life. Still images of the man were sold by the local council to the media. The court considered it significant that his actions "were seen to an extent which far exceeded any exposure to a passer-by or to security observation and to a degree surpassing that which he could possibly have foreseen." He was recognised by people who knew him, including family members, friends and colleagues.
More recently, author JK Rowling won a case over a photograph of her infant son.
Sir Anthony Clarke wrote in that case: "As we see it, the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher."
The result of applying that test to the obesity documentary is difficult to predict, Jay said. She pointed out that individuals enjoy other protections, though.
Broadcasters in the UK are expected to follow an Ofcom Code and they can be fined for non-compliance. An Ofcom spokesman told OUT-LAW, “It is acceptable for broadcasters to film in a general manner in a public place providing the footage is brief, incidental and an individual is not engaged in a personal or private activity.”
He said that in circumstances such as in the obesity documentary, it may be sensible for the broadcaster to pixellate the faces of people being filmed if there was no consent.
Newspapers apply similar rules. The Press Complaints Commission told OUT-LAW that the privacy protections in its Code of Practice may apply when a photograph is used in a way that distresses a member of the public. Pixellation was recommended.
The PCC Code states: "Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications. Editors will be expected to justify intrusions into any individual's private life without consent."
That rule was the subject of a complaint by Allegra Versace, daughter of designer Donatella Versace. Now! magazine printed a photograph of her which was taken while she was shopping in London. She looked emaciated and Now! speculated that she had an eating disorder. The magazine published an apology for the intrusion into her private life and accepted that it should not have speculated about her health.
Pinsent Masons and Amberhawk Training are holding an Update session on 26th January in London where up to date data protection topics are the agenda. If you are interested in this event, please email [email protected] for a brochure.