The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.
The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.
For full contact information and a brief bio, please see David's profile.
The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.
This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.
Sunday, February 08, 2009
The European Court of Human Rights has ruled that taking a person's photograph (even if not for publication or commercial use) violates that person's human rights. The case stems from a photograph taken of a newborn baby in a Greek hospital by a company that was hired by the hospital to take such photos.
Here's the press relase from the Court:
EUROPEAN COURT OF HUMAN RIGHTS
Press release issued by the Registrar
REKLOS AND DAVOURLIS v. GREECE
The European Court of Human Rights has today notified in writing its Chamber judgment in the case of Reklos and Davourlis v. Greece (application no. 1234/05).
The Court held unanimously that there had been:
a violation of Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights on account of the Greek courts’ dismissal of the applicants’ complaint about photographs having been taken of their new-born baby without their consent; and, a violation of Article 8 (right to respect for private and family life) of the Convention in respect of the applicants’ son.
Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants 8,000 euros (EUR) in respect of non-pecuniary damage. (The judgment is available only in French.)
1. Principal facts
The applicants, Dimitrios Reklos and Vassiliki Davourli, are Greek nationals who were born in 1964 and 1967 respectively and live in Athens. They are the parents of Anastasios Reklos, who was born on 31 March 1997 in a private clinic. Immediately after birth, the baby was placed in a sterile unit to which only medical staff had access.
As part of the photography service offered to clients, two photographs of the new-born baby, viewed face on, were taken by a professional photographer. The parents objected to this intrusion into the sterile environment without their prior consent.
On 25 August 1997, following the clinic’s refusal to hand over the negatives of the photographs to them, the applicants brought an action for damages before the Athens Court of First Instance. The court dismissed the action as unfounded.
In September 1998 the child’s parents appealed unsuccessfully against that decision. In August 2002 they lodged an appeal on points of law, submitting that the court rulings had infringed the right “to dignity” and “to protection of private life”, and stressing the potential dangers for disabled children.
On 8 July 2004 the Court of Cassation dismissed the appeal on points of law on the ground that it was too vague.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 28 December 2004.
Judgment was given by a Chamber of seven judges, composed as follows:
Nina Vajić (Croatia), President,Christos Rozakis (Greece),Anatoly Kovler (Russia),Elisabeth Steiner (Austria),Dean Spielmann (Luxembourg),Sverre Erik Jebens (Norway),George Nicolaou (Cyprus), judges,and also Søren Nielsen, Section Registrar.
3. Summary of the judgment
Relying on Article 6 § 1 (right of access to a court), the applicants complained about the dismissal by the courts of their action concerning the photographs of their new-born baby taken in the clinic without their consent. They further complained of a breach of their child’s right to respect for his private life under Article 8.
Decision of the Court
Article 6 § 1
According to the Greek Court of Cassation, the applicants had failed to fulfil one of the requirements for admissibility of their appeal on points of law, consisting in specifying the relevant facts on which the Court of Appeal had based its decision dismissing their appeal. The Court, by contrast, took the view that the Court of Cassation had been apprised of the facts as established by the Court of Appeal.
The Court considered that declaring the parents’ appeal inadmissible on the sole ground that it had been too vague had amounted to excessive formalism. This had prevented the applicants from having the well-foundedness of their allegations examined by the Court of Cassation, in breach of the right of access to a court set forth in Article 6 § 1.
The Court reiterated that the concept of private life was a broad one which encompassed the right to identity. It stressed that a person’s image revealed his or her unique characteristics and constituted one of the chief attributes of his or her personality. The Court added that effective protection of the right to control one’s image presupposed, in the present circumstances, obtaining the consent of the person concerned when the picture was being taken and not just when it came to possible publication.
The Court observed that, since he was a minor, Anastasios’s right to protection of his image had been in the hands of his parents. Their consent had not been sought at any point, not even with regard to the keeping of the negatives, to which they objected. The Court noted that the negatives could have been used at a later date against the wishes of those concerned.
The Court concluded that the Greek courts had not taken sufficient steps to guarantee Anastasios’s right to protection of his private life, in breach of Article 8.
The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int/).
 Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17‑member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.
 This summary by the Registry does not bind the Court.
The Canadian Privacy Law Blog is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.5 Canada License.