Privacy Rights - Yet Another Balancing Act

Privacy Rights - Yet Another Balancing Act

Privacy rights are rights that attach to every individual. Article 8 of the European Convention on Human Rights protects them by asserting that “everyone has the right to respect for his private and family life, his home and correspondence.”  Despite this, we know that our privacy rights (like all our other rights), are not absolute and are by necessity limited. What is problematic then, is achieving an appropriate balance in defining the scope and limits of this very unique right.

A recent ruling by the European Court of Human Rights (ECHR) provides an example of the difficulty of discerning the boundaries of this right. The case concerned a hospital taking a photograph of a newborn baby as part of a commercial service.  The court ruled that simply the taking of the photo without the parent’s consent was a violation of the baby’s right to privacy even though the photograph was never published. In his ruling the judge made the following remarks:

the concept of a private life is a broad one encompassing the right to identity - he stressed that a person’s image revealed his/her unique characteristics & constituted one of the chief attributes of his/her personality

the effective protection of the right to control one’s image presupposed in the present case obtaining the consent of the person concerned when the picture was being taken and not when it came to possible publication

the action of taking the photo breached the child’s right to a private life as guaranteed by Article 8 of the European Convention on Human Rights, and that the Greek court failed to uphold that right

At first glance, this ruling may seem arbitrary especially because the photograph was never published, but what is underlying this decision is an implicit contextual balancing. In the recent JK Rowling case, (where she won a case over a photo of her infant son), the judge wrote that the question of whether there is a reasonable expectation of privacy is a broad one which takes account of all the circumstances of the case. This means that each case will be context specific. The factors listed included consideration of the attributes of the claimant, 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, effect on the claimant and finally the circumstances in which the purposes for which the information came into the hands of the publisher. 

Other cases involving photographing/filming someone on the street demonstrate that this balancing act is not always so easy. For example, in a recent case, a 40 year old woman was shopping and did not know she was being filmed. Later she discovered that the Croatian TV station had featured her in a documentary about obesity. She was quoted as saying “I was absolutely staggered when I turned on the TV to see myself in a film about fat people", and "I want to show that attacks on human dignity like this cannot be tolerated". Unfortunate incidences like this must still be subjected to a balancing exercise for as stated above, an individual’s privacy right is not unlimited. Here the main question was, whether this footage can be said to constitute personal data in the hands of the media. On one hand, one could argue that she was clearly identifiable because she could recognize herself on TV and therefore that this was personal data. One could also argue that because the nature and purpose of the intrusion was offensive and dealt with a very personal attribute of her physical self, it was personal footage. On the other hand, the fact that this intrusion occurred in a public place could mitigate against a finding of a violation of privacy rights. In addition, it could also just as easily be argued that she was not identifiable in the sense that, although she could be recognized, it would not be possible from the footage to go to her house and find her

Another example of privacy rights being asserted in the public domain involves the case of Naomi Campbell who was photographed leaving a Narcotics Anonymous meeting. In holding that her human rights had being infringed, The House of Lords admitted 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.

These cases are more difficult because they often occur in the public domain, where the complainant arguably has a decreased expectation of privacy. In each case, a court must conduct a contextual balancing act because no two cases are the same. Specifically, it is the myriad of factors that makes this balancing difficult for it has long been established and understood that our right to privacy is not absolute. For example, we know that it is not possible to stand in Times Square in New York City and not be accidentally photographed. This is a limit. Furthermore, it would never be desirable to allow an assertion of privacy rights against such incidental exposure for the public as a whole has an interest in this freedom, and one individual’s privacy rights should not trump it.