UK: When Taking A Photo Is Anything But Clear…

Last Updated: 8 April 2009
Article by Chris Pulham

The instant popularity of Google's new tool, Street View, has understandably put the spotlight on a number of issues relating to the use of photos on the internet. Much of the concern about the new tool, released in March, has focused on the privacy rights of individuals pictured, which was a problem addressed by the Information Commissioner's Office in a press release.

Helpfully for Google, the ICO indicated back in July (nearly 9 months before Street View went live) that it believed enough safeguards were in place to avoid the risk to individuals' privacy or safety.

These safeguards were principally that Google would blur number plates and faces, the tool for reporting an image for removal, and the time delay since the photos were actually taken.

However, since its launch various 'highlights' have been discovered by users and since republished in the various online and print media - ironically, as the original image in most of those cases has since been reported, perhaps by the people pictured in the usually-embarrassing situation. Those photos have generally already been removed from Street View, but of course they will continue to exist in countless caches around the world for some time.

These amusing Street View examples show that there is often a shroud of uncertainty over whose rights prevail where and how photos can be taken, used or published.

On an individual level, with the rise of the social networking sites it is common for photos to be circulated on posted online, and for the individuals in them to identified and tagged, usually without complaint.

Even when simply taking snapshots in the street, there are many – sometimes conflicting – issues to be considered regarding ownership or various privacy rights; some of the key points are outlined below:

  • If the photo has been commissioned by someone, then unless there is a written agreement assigning the copyright to the commissioner, the photographer is likely to have given them an implied licence to use the photo to some extent. Depending on the circumstances, this could even be an exclusive licence, prohibiting the photographer from using the photo himself;
  • If the photo clearly is "obviously about" someone – and particularly where they have been 'tagged' and identified by another means – that photo may count as personal data, giving the individual rights to object to the subsequent use of that photo under the Data Protection Act 1998;
  • Because the UK has only a patchwork approach to an individual's right to privacy, the balance under the Human Rights Act 1998 between the rights to "respect for his private and family life, his home and his correspondence" (Article 8), and to "freedom of expression" (Article 10) may not be clear. If the situation is obviously private or the photo is offensive in some other way (if they showed a person in a situation of humiliation or severe embarrassment) the balance will swing towards the individual's right, but this may not be easy to gauge;
  • If the photo – perhaps of a celebrity – is reused in a way to falsely suggest to the audience that they have endorsed a particular product, this may create rights for that person to claim (perhaps under the law relating to passing off, malicious falsehood).

Although the ICO has given some guidance to Google on its position under the Data Protection Act, it should serves as a reminder to all of us to bear in mind the rights of others which might exist in a photo before posting them online.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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