Photographs and Privacy

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“Take it down!”

What are your rights in relation to photographs posted online?

Photographs used to take time. A moment is captured. There could be no instant review. Only 24 pictures on a roll of film, it had to be right the first time. A few days or a few weeks later the film would be developed. You would pore over the pictures, examining each one carefully, to see how they had turned out, remembering the moment and the pictures taken.

With the advent of the digital camera, things began to change. Social media and smart phones completely revolutionised photography and the publication of photographs. Never have more photographs been taken. Never has less thought been given to their content. Photographs can be published instantly online and immediately reach millions of people via social media sites.

Unfortunately these changes have had an unpleasant side effect. It has become far too common to find pictures of people engaging in sexual activity or in a state of undress online. Often it is clear that they are unaware that they are being photographed, or are not in a fit condition to object, even if the pictures are being taken in a public place. These pictures can have serious consequences for the subjects, and their families, not to the mention the impact they can have on their employment.

So what are your rights and what are your options? Can anyone publish pictures of you without your consent?

The right to privacy is found in Art 40.3 of the Irish Constitution.  In addition, Article 8 of the European Convention on Human Rights provides for the right to respect for private and family life.  In general, pictures of people taken in a public place do not require the consent of the subject for publication provided they are over the age of 18, the photographs are taken openly and they do not object to being photographed. The right to privacy must always be balanced against that of freedom of expression. But if your right to privacy is breached, you can apply to the Court for an injunction and/ or an award of damages.

In 1997, a tabloid newspaper published pictures of a professional model in a state of undress.  The pictures had been taken with a long lens camera. The model sued for damages for the breach of her constitutional right to privacy and the newspaper settled the case after several days hearing in the High Court. More recently the Irish Courts ruled that the publication of a picture of a GAA player who’s private parts were exposed due to an unfortunate wardrobe malfunction was a breach of privacy. The individual was awarded €11,000 in damages.

But what about the internet? It is all very well having a constitutional right to privacy but as we all know, the speed at which content can spread online is frightening and you might not have the time or the money to spend applying to the Court for protection. First and foremost you need to get the content removed from the website as quickly as possible. Secondly privacy laws are not the same in every country and if the content is being hosted outside of Ireland you might not be able to rely on your rights under the Constitution.

In reality, the most effective protection available to individuals can be found in the terms and conditions of use of a website. For example, Facebook has a reporting tool available for users and non-users alike which allows individuals to report content that “infringes or violates someone else’s rights or otherwise violates the law.” Facebook have reserved the right to remove content or information posted on Facebook if they believe that it violates their Statement of Rights and Responsibilities or their policies. This includes content that: is hate speech, threatening, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence. Twitter, Google+ and Youtube all have similar policies and are often the fastest and most effective way of dealing with damaging photographs.

If you think your privacy rights have been breached and you do not know what step you should take next, please contact us or use the “Do you have a case?” link at the top of this page.  We will consider your case and advise you in relation to any options you might have.

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