Taking Someone’s Picture Without Publication

The European Court of Human Rights has ruled that taking someone’s picture without their consent (or in this case, taking a newborn baby’s picture without its parents’ consent) is a breach of fundamental human rights, whether or not the picture is ever published. The story is on OutLaw.com. [The judgment in Affaire Reklos et Davourlis c. Grèce is available only in French.]

“The Court reiterated that the concept of private life was a broad one which encompassed the right to identity,” said an ECHR press release about the ruling. “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.”

Clearly PIPEDA would not cover this case in Canada, unless the collection of the personal information (the photo) was for commercial purposes. This is not clear form the story. Are provincial privacy laws aimed only at commercial uses? I would have thought not — that this restriction on PIPEDA stems from the need to have a constitutional reason for legislating on privacy, and interjurisdictional commerce is the one they are relying on.

Is this a problem? Should our law go this far?

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Comments

  1. It’s worth noting that the Quebec Charter of Human Rights and Freedoms appears to go even farther than the ECHR decision: the Aubry decision (http://csc.lexum.umontreal.ca/en/1998/1998rcs1-591/1998rcs1-591.html) granted a right of privacy (under s5 of the Quebec Charter) which extended over the use of photographs without consent even when the photograph was taken in a public place.

    Outside of Quebec, the privacy statutes vary considerably (at least in those provinces where they exist), but generally, yes, a \commercial use\ is required as a triggering event.