Rowling ruling bolsters privacy chief's view of data protection
The Court of Appeal's ruling in JK Rowling's privacy case confirms that a breach of other laws can result in an automatic breach of the Data Protection Act, an expert has said. That view has been held by the Information Commissioner but was previously untested in court. In a case brought on behalf of their son, David Murray, JK …
On the simple grounds the photographer and JK were on public grounds and the right to privacy when in public does not hold.
So, hang on... Does this now mean that any photo taken in a public place that shows people who have not given explicit permission for the photo to be taken, are illegal? It seems so.
Er, does that mean that CCTV systems are also illegal?
This needs to be discussed in more depth!
Will this make Phorm's profiling illegal too? If they're in breach of the RIPA, this makes them in breach of the DPA too.
I welcome this change.
"So, hang on... Does this now mean that any photo taken in a public place that shows people who have not given explicit permission for the photo to be taken, are illegal? It seems so."
So you want to give carte blanche to people taking photographs of young schoolgirls as they exit from the school gates? Yes, you can argue that technically you are within your rights to do so but whether you should be doing so and then publishing the photos is a different matter.
In the case of Rowlings I think the action was taken because the child in question was only 20 months old when the photos were taken. Photos of celebrities walking down a public street might be considered of public interest but that argument should not hold for under 2s.
Agreed. On one hand if you are on public property then you are fair game but there should be an exclusion for legal minors without the parent / guardians consent. I as a parent would quite rightly get upset over someone taking pictures of my kids without my consent regardless of where we were. Adults? fair game.
Tux - well just because my daughter likes him :)
There is no "expectation of privacy" in the street. Otherwise, street CCTV cameras would be illegal. And if you are a celebrity, then there is no expectation of privacy *anywhere*. We, The Public, are the ones who *made* you famous in the first place. That means we *own* you.
If the photographer and the subject were both rightfully on the Queen's highway, then the photograph was legal. If you don't want people taking pictures of you, stay at home.
Dangerous fucking ground there.
Legal minors is a hell of a lot of people, far more than you'd ever want to be requiring parental permission for. Following your proposal to the letter, you'd need parental permission for every 17 year old going to a festival, or a football match, or the beach on a hot day, just in case they get caught in a crowd photo.
It's hard enough as it is to take photos without the police accusing you of planning terror strikes or child molestation.
Ah, the "think of the chiiildruuun" plea. A good sign that someone hasn't any better-argued points to make.
You can read the ECHR at http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf
Article 8 is short (only two sentences) and it is clear from it that the expectation of privacy belongs to everyone, whether adult or child and whether or not either they or their parent is famous.
If this ruling leads to fewer examples of the paparrazi promoting their own cult of photo-celebrity I feel it can only be a good thing.
Um, technically unless I'm very much mistaken, parental consent has to be obtained from guardians for any photo's involving children - including school photo's as one obvious example. If the child can be easily identified I think permission has to be granted. I can't remember where I read it, probably in one of the Blackstones manuals, or maybe under some Child Protection Act rule?
In my experience, all kids under 2 years old all look alike (skin and hair colour as exceptions). I don't see how the Rowling baby has had his privacy invaded for various reasons:
1) He doesn't have a sense/requirement of his own privacy at this stage.
2) Nobody will be able to recognise him from the pic anyway.
If it had been reported that Rowling Jnr attended a certain childcare centre or similar information that enabled a 'nutter' to track him down, that would be quite different. This is actually a case of JK Rowling having her privacy invaded, in which case they should take appropriate action.
The argument from Chris W seems to propose that anyone who wants to take pictures in a public place is a potential paedophile. This seems to be the way that 'rational' discussion is going these days - choose an extreme potential extension of a situation and then imply that this is what your opponent wants.
GettinSadda asked a perfectly reasonable question and stated that he thought that in-depth discussion was needed (it certainly is). The 'pictures of schoolgirls' jibe from Chris W was truly the kind of tactic that Big Brother would use.
Hey Chris, guess what, I take pictures of my dogs. I suppose that now you'll be going round telling people that I'm involved in bestiality porn. That would fit the bill for you.
but if you publish it, you better have a signed release from me.
Then again, I'm not famous. Is the sprog famous, or just his mum?
If you want privacy, don't go out in public, and that includes taking or letting your kids out in public. Simple as that.
Or do a Michael Jackson and stick a veil on your kids.
Sure there are those dodgy few (and lets be honest here, it's not like the Daily Mail would have you believe where there are thousands of guys lurking around every corner waiting to take photos of kids), but we need a sense of perspective when it comes to photography.
Thousands of legitimate photographers, amateur and professional, are being criminalised because of the off chance of one or two weirdos (who will still find a way to take covert photos anyway regardless of the law). It's the same with anti-terrorism where now an innocent photographer can be arrested just because they pointed a camera at a government building or a police officer.
Why force through changes because someone "famous" has more money to throw around at lawyers?
If your image is to be deemed private in public places, then I demand all my images are erased from CCTV. Then we may as well all lock ourselves in our homes in case someone's eyes fall upon us, and only go out after dark and in a full veil. Sometimes I do think I fell asleep and woke up in an extremist country!
Seriously though, surely current laws are fine. If someone really is taking perv photos in public, they'd could be had for indecency laws or harassment.
And anyway, there's far more danger when parents foolishly post their kids photos on Flickr and the like, set to public access for everyone to download!
Paris because she knows about having her photo taken in public.
Surely when it comes to privacy, there's a material difference between publishing a picture of some random/unidentified person taken in a public place and publishing a picture of a named individual taken in a public place.
It would seem rather extreme to say to someone famous that if they don't want their child's picture repeatedly appearing in newspapers, they should keep their child away from all public places.
Even if a relative of someone famous is an adult rather than a child, they should have a default expectation of privacy.
"In the case of Rowlings I think the action was taken because the child in question was only 20 months old when the photos were taken. Photos of celebrities walking down a public street might be considered of public interest but that argument should not hold for under 2s."
Famous person has a child, goes out in public with kid for first time, surely it's not unreasonable to expect the press to want that photo? Certainly would be of public interest.
So long as they don't harass them.
Into an obnoxiously litigious cow. Or perhaps just Marchioness de Safe. Not reading her own books or hanging out in Hollywood for too long?
Talking of which, after Whacky Jacqui's extreme pr0n law is activated, anyone photgraphing a cow or sheep or goat is definitely going to be looked at as some kind of perv (unless it's the farmer's own animal and you're the farmer). Leaving the field to the Marquis de Sade (120 Days, if you really must know). Your country outings are never going to be the same again.
No-one has said photos cannot be taken. But Rowling is complaining that they were published.
So yes, anyone can take photos of anyone in the street. But publish them without permission and you're on dodgy ground.
They were in a public place and thus had no expectations of privacy. The only other thing they could argue is harassment, however a single incident would not really be cause for this to be classed as such.
The fact (and the law) is that I have every right to take a photograph of anyone in a public place. I also have the right to publish and sell that photo for my own profit. So, AC - I won't need a release from you. I'm talking in the UK here. Other countries may require a release. The only caveat is that many agencies will require a model release before buying a photo, to cover their own backsides.
@Jim Booth - I too wouldn't really like people taking pictures of my kids without my permission, but they are doing nothing illegal so I can't stop them.
@Chris W - what is _actually_ wrong with taking pictures of schoolgirls walking out the school gates? Where I live the girls are fully clothed at school so it's not exactly child porn is it? Plus, I can go onto the school website and - shock horror! - there are pictures of the kids in school uniform on it.
This attitude that anyone taking photos of kids is automatically going to use them for nefarious purposes is completely ridiculous. Crap analogy, but we'd better ban kitchen knives, because somebody might use them to kill somebody else.
<climbs down from high horse and calms down>
If you film someone with the goal of publishing it, im sure you have to get permission from the person you have filmed, surely the same is true for pictures.
After all, film is just lots of still pictures... :-)
I think this doesnt count if it can be proven that you knew filming was going to take place... like a football match, or a tv audience...
On the flip side, if the child knew the filming (papping) would take place and they went out anyway, then surely....
'Public interest' doesn't mean:
"Some sad member of the public might find it interesting to read about rather than getting a life",
it means:
"There is some value (ie interest) to society of the public being informed/educated about something" (eg hypocrisy of a public figure, etc)
"In my experience, all kids under 2 years old all look alike (skin and hair colour as exceptions)."
I can only assume you have no experience of kids under 2 years old.
As the parent of a 13 month old girl who spent the weekend at a kid's 1st birthday party, believe me, they all look completely different.
Your inability to distinguish facial features isn't a good basis to form an argument, never mind a law.
...as an amateur photographer, is that I can photograph anyone or anything in a public place, and as photographer, I own the copyright, so can publish it as iI wish. An exception is that if the subject objects, I must stop taking photographs, or I could be guilty of harassment, but the subject can't make me hand over or destroy the images, nor prevent me publishing them. This is the common law.
There are all sorts of newer laws, including European privacy laws, that muddy the waters, so it is not quite as black-and-white (or should that be monochrome) as that.
Publishing is always fraught with problems, which is why papers and TV blur faces of children and other bystanders. Though the latter is probably just as much to do with people demanding payment as for privacy.
If you take some of the comments about 'illegally' photographing people at face value, you would have no "You've Been Framed" or other candid camera type programmes, and newspapers would have no papped slebs, nor crowd scenes.
Metro and Hello! would be very empty.
Take it further and we should stop all TV programs and films that show children.
I thought the Data Protection laws were about handling information provided by an individual to an organization; things like addresses, vital stats etc, not pictures taken by one person of another.
I saw a picture of Prince William in the paper the other day. He was on a street with a lot of people in the background. According to what some of the people on here are saying (Chris W), a photographer cannot sell that picture for publication unless he gets the permission of the hundreds of people that were in the background.
Something doesn't seem right there. If you are in a public place, you do not expect to have privacy.
Now if someone was taking pictures of said people in their own homes or gardens without consent, then that is a different story.
http://www.sirimo.co.uk/ukpr.php
Nearly, but not quite, every thing viewable from a public location is okay to photo - if you can see it, you can photo it (just don't step onto private property at all).
There are exceptions, but it's doubtful that anything concerning national security was included, unless MI6 has an cloaked entrance on King's Cross platform 9 ¾, or Rowling's pram uses stolen US Stealth 3.0 tech to avoid Heat(mag)-seaking white Fiat Puntos.
>>"My understanding as an amateur photographer, is that I can photograph anyone or anything in a public place, and as photographer, I own the copyright, so can publish it as iI wish."
If you own the copyright, doesn't that rather mean that no-one else can publish it without your permission?
Is there not a difference between copyright (protecting your right not to have people profit from your work) and the unrestricted right to publish?
If I wrote a libellous article, or one giving details which infringed on someone's privacy, the literary work would be mine, but that wouldn't give me the unqualified right to publish it.
If I took pictures of someone in a private place, would I not still have copyright even if I couldn't publish them?
>>"If you take some of the comments about 'illegally' photographing people at face value, you would have no "You've Been Framed" or other candid camera type programmes"
With candid TV programmes, don't they seek the subject's consent before broadcasting?
>>"...newspapers would have no papped slebs, nor crowd scenes. Metro and Hello! would be very empty."
And?
Anyway, surely crowd scenes are quite different from identified pictures specifically taken of specific people.
"There is no "expectation of privacy" in the street. Otherwise, street CCTV cameras would be illegal. ."
What utter bollocks - you have the right to go about your (lawful) business in private and without interference from others. Just because you are in a public place does not mean that right is waived. Sure - if you are a celebrity, then there is reasonable expectation that you will have your picture taken and that it will be published. If that photographer was intrusive though, then let them know. If they don't stop you could get them arrested for harrassment. The children of celebrities also have a right to privacy and the case here is that JK Rowling does not want her son identified and I think it is entirely reasonable for her to take that action. If she didn't, we wouldn't have any case law to prevent it in the future and that cannot be good.
As far as the CCTV is concerned, the cameras are (usually) there to observe an area and to help the operators provide security whether that's in a public place or in a private property. If you are filmed in a street by CCTV, it's not breaching your right to a private life because it's not watching you. If you started behaving suspiciously then the cameras will focus on you and that's what RIPA is for. I bet that if you were mugged and it was caught on camera, you'd want the police to catch the toe-rag. You would be glad of CCTV then.
@Daniel Wilkie - the school would need the guardian's consent if the photos were to be published and if going on the internet, they would have to get additional consent to be on the safe side. If, though, you are taking pictures of your children and other children might be in the picture, you don't need to get permission to use the photographs from their guardians because there is a specific exemption under the DPA for domestic purposes.
"What utter bollocks - you have the right to go about your (lawful) business in private and without interference from others. Just because you are in a public place does not mean that right is waived."
But that's the point, you are not going about your business in private when you are in a public place. You are going about your business in public. The right you have in public is to not be harassed. Taking a photo isn't in itself harassment unless you persist in a way that causes the subject to be distressed.
If you were to then go into a private property, that's another matter.
After all, if it was private business in a public place you could parade around in the nude without worry ;-)... but you can't because it's in public and you are responsible for not offending others through indecency because you are in public.
As for film, I'm not sure, but I think it's the same as photography. The only reason for releases and seeking permission is likely to be to do with guilds/unions and the fuss that would be created by actors and extras who hate the idea of Joe Public taking their work. Permissions probably involves waivers to say they have no rights to credit or any money made on the film.
p.s. what makes me laugh about TV news these days is the way kids seem to be just disembodied legs! although surely this will feed people with a leg fetish! ;-)
I thought may of the big celebrities allowed magazines to take pictures of their children providing enough money changed hands. As afore-mentioned, Whacko covered his with beekeeper style hats etc and I have seen quite a few mag and paper photos of celebrities with their children when the childrens faces have been blurred out.
I would have thought that any picture of a youngster would not be much extra use for identification purposes at that age as they will always be with their easily identifiable parents when out in public. It's not likely that someone will look at a child and say that is little joe bloggs, so that woman holding him must be his very famous mother Mrs Bloggs.
So it appears that her real issue her own privacy, but again as mentioned earlier, she has the money to waste to go through the law courts to impose judgements which will later become detrimental to the lifestyle of the rest of us mere mortals who can't aford to go back to court to get a judgement that the Rowling judgement was meant in way x as opposed to way Y in which it is now being interpreted by completely unrelated Mr Plod.
