Image Control

One of the unexpected offshoot discussions arising from the Blog Awards was the discomfort some of those attending felt at seeing their photographs and, to a lesser extent, discussions of them in general, appearing online afterwards.

What that girl, Piaras Kelly and Damien Mulley’s discussion boils down to is what degree of control a person can have over how they are depicted.

The Law Society’s magazine, the Gazette recently published an article rounding up of the caselaw in this area. However, as Sinead Brady- the author -finds, most of the caselaw has centred on the misuse of celebrity images to imply an endorsement of a commercial good or service. This is dealt with by the courts, in general, under the familiar rules covering passing off.

Basically, this means that if your image might be worth money if used in an advertisement or as part of an endorsement of a product then you have a right to protect the income flowing from that as a property right.

But what about the rest of us, who don’t make our fortunes by assuring the world that as Hollywood millionaires, we choose only the finest home bottle hair dyes to colour our hair? Well, Ms. Brady gives us the story of Gordon Kaye to illustrate the difficulties we might face in preventing pictures of us appearing with which we were unhappy.

This is particularly notable from the English case of Kaye v Robertson ([1991] FSR 62 CA). The plaintiff in this case failed to be able to point to a cause of action, as there was no suggestion of endorsement or misrepresentation. It concerned Gordon Kaye, a well-known British actor who was recuperating in hospital after sustaining serious head injuries when he was photographed and interviewed by a newspaper.

Due to the nature of Mr Kaye’s injuries, he had no recollection of the interview and, shortly afterwards, sought to prevent the publishing of the photographs and details of the interview. A limited injunction was granted by the court, merely preventing publication of the materials in such a way as to suggest that it had been approved by Mr Kaye. In my opinion, the denial of any adequate remedy to Mr Kaye (despite the obvious gross invasion of his privacy) seems wholly unjust. The court felt that it was powerless to come to the aid of Mr Kaye in the absence of legislative intervention.

Mr. Kaye, who may be best known to a certain generation for playing a reluctant member of the French Resistance with a mesmeric power of recollection of exponentially complicated plotlines, couldn’t sue for libel of course. He might have felt that the photographs brought him down in the eyes of society, but he didn’t claim them to be untrue.

Here in Ireland we have a Minister for Justice who has, for our education, outlined the current position for us in a statement. We are indebted to him for ensuring that we do not need to do all the hard research work ourselves. Some handy quotes;

The European Court of Human Rights unanimously …decided that the
zone of interaction of a person, even in a public place, fell within the sphere of private life. The
magazine argued the contrary, namely, that people’s privacy applied in their homes but that,
when they went out onto the public street and became a public person, they left their privacy
behind them. The European Court of Human Rights effectively said that even public persons had
a portable sphere of privacy, meaning that if they go out to do their shopping in the supermarket
or go with their daughter to have a meal in a restaurant or a coffee, they cannot simply be the
subject of massive and intrusive paparazzi surveillance.

…

Thus, while I am unconvinced of the need for the statutory development of a privacy tort at this
stage, the same cannot be said of the reform of our law on defamation. It is on that subject that I
can now usefully comment. The focus of my efforts over the past two years has been reform in
this area.

His opinion is that Ireland has already got sufficient protections in the form of a tort of breach of privacy built from a mixture of Constitutional protection and ECHR caselaw.

The Minister’s opinions may yet alter as he attempts to get his long announced but as yet unseen Libel Bill enacted, but that is not central to this particular discussion.

So, to recap- if you don’t like the publication of an image of you, what can you do?
You can argue they are interfering with your commercial endorsement business.
You can say it is libellous if, for example, they have photoshopped up a picture of you grinning your way through a handshake with Hitler. But not if it is an accurate picture of you falling over drunk at the office party.
You can claim that your rights to privacy, as protected by the Constitution and the European Convention on Human Rights have been tortiously violated. But to do so, I would suggest you would also need to show that you were in a situation which a reasonable person would agree was one which would indicate that you’d brought your ‘portable sphere of privacy’ out with you. So, buying toilet paper in the local spar, yes. Waving from the podium at the Fianna Fail Ard Feis, no.

I hope other, clever, folk might leave their thoughts on this matter in the comments.