Is it lawful to photograph a public figure or a person not of public interest without their knowledge and consent, and for third parties to distribute or otherwise use those photographs?
The European Court of Human Rights (hereinafter referred to as the ECHR) has addressed this legal question in the case of Reklos and Davourlis v. Greece (Application No. 1234/05):
The facts of the case are as follows.
A professional photographer photographed the applicants' newborn child in a sterile department of a medical institution (which was accessible only to medical staff) with the intention of selling the photographs of the newborn to the applicants.
This situation caused outrage among the parents, the applicants. They considered the photographer's actions unlawful and demanded the immediate intervention of the medical institution to return their child's photographs and their negatives.
Faced with the indifference of the medical institution and receiving a refusal regarding the request for the negatives of the photographs, the applicants filed a claim for moral damages in the Athens First Instance Court. The applicants specifically argued that the medical institution's actions violated their newborn child's right to privacy by allowing the photographer access to a place only accessible to medical staff without requiring their consent to photograph the newborn, and later failing to provide them with the photographs and their negatives upon request.
The court, upon examining the claim, concluded that the act of photographing the newborn could not violate the right to the inviolability of his private life, as a one-day-old child could not have a formed psychological and emotional world; therefore, a photograph depicting the child's face could not violate his rights in question or have a negative impact on his future development. Accordingly, the First Instance Court dismissed the applicants' claim.
The applicants filed an appeal against the court decision, which was subsequently rejected by both the appellate and the Supreme Court.
Finding that their son's right to respect for his private life, enshrined in Article 8 of the European Convention on Human Rights (hereinafter referred to as the Convention), had been violated by the national courts, the applicants brought the matter before the European Court of Human Rights. In their application to the ECHR, they specifically stated that there had been an unlawful interference with their child's private life by the national courts, which was manifested in the rejection of their claim aimed at restoring their son's violated rights. According to the applicants, the approach of the national courts regarding the protection of their child's rights is dangerous. The applicants expressed concern that if the perception of a violation of rights is considered a necessary prerequisite for restoring the violated right through judicial means by the individual (in this case, the newborn child), then the honor and dignity of certain categories of individuals would be placed in immediate danger.
In response to the complaint, the Greek Government based its arguments on the fact that the photographs in question had never been published, but were taken for the purpose of selling them to the child's parents. Additionally, the Government referred to the national courts' position regarding the intellectual development of a one-year-old child and the ability to perceive a violation, arguing against the claim that the child's personal rights had been violated.
Based on the facts of the case, the ECHR's task was to determine whether there had been an interference with the protection of the applicant's son's right to private life in the absence of the photographs being published.
The ECHR noted, in particular (§ 40), that a person's photograph is one of the essential components related to their individuality, as it reflects the characteristic features of a person and allows them to be distinguished from others. Thus, the right of a person to protect their photograph is a crucial component of their individual development and implies the person's right to exercise control over the use of their photograph. Although the right to control the use of a photograph often implies the right of a person not to allow the publication of the photograph, it also includes the right to object to being photographed by another person, to have their photograph retained, and/or reproduced.
Since a person's photograph is one of the means that characterize them, effective protection of it fundamentally implies that consent to photograph must be obtained in advance, that is, before photographing the person (rather than at the time of publication or when publishing the photograph). Otherwise, the photograph will be in the hands of third parties, and the interested person will have no control over its further use.
The court, addressing the facts of the case, stated that the applicants' son does not represent a person of public interest for a wide audience and therefore does not fall within the group of individuals whose photographing without their knowledge or consent can be justified by public interest or any other grounds (see Krone Verlag GmbH & Co. KG v. Austria, No. 34315/96, § 37, February 26, 2002).
Moreover, the ECHR also emphasized that the person depicted in the photograph was a minor, and consequently, the exercise of the right to protect his photograph was controlled by his parents. Accordingly, the applicants' prior consent was required for photographing their son, if only due to the necessity of clarifying the purpose of the further use of the photographs by the applicants.
Furthermore, the Court did not consider it less important that the photographer continued to retain the negatives of the photographs taken, despite the fact that the child's parents had made a clearly formulated request to return the photographs and their negatives to them.
The Court also noted that the photographs in question only reflected the child's face and not in a position that could be considered degrading or that could in any way violate his rights. Nevertheless, the key issue in this case is not the nature of the photograph (whether it is degrading or not), but the fact that the photographer obtained them without the applicants' consent.
Thus, the child's photograph was in the photographer's possession with the possibility of further exploitation, against the will of the interested person and/or his parents (see mutatis mutandis P. G and JH v. United Kingdom (PG and JH v. United Kingdom, No. 44787):
The ECHR thus established that the national courts, when examining the parents' request, did not take into account the fact that the applicants had not given their consent to photograph their son nor to retain the negatives of the photographs. Considering the above, the ECHR concluded that the Greek courts did not provide sufficient guarantees for the protection of the applicant's son's right to private life in this case, thus establishing that there had been a violation of Article 8 of the Convention.