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23rd July 2015

The photo of the lady’s behind


23rd July 2015

The photo of the lady’s behind

I’m not sure that this one has yet made national news, but it will! I heard it on Radio Solent yesterday afternoon. Apparently a lady was doing her weekly shopping in the supermarket (didn’t catch which one) when she turned around to find a man taking a photo on his mobile phone of her bottom. The lady objected, as one might expect and called security who in turn called the police. The Police have said that as he hasn’t actually committed a crime, there is little they can do.

It is an interesting situation – morally, one would assume that of course you could stop someone from taking your photo without your permission. But actually, can you? The Privacy Laws in the UK are minimal and usually involve trespass onto private property or into private property using enormous lenses to take photographs that would be impossible to take had it not been for such a large lens. There is little to protect individuals from objecting to this sort of situation. Even Human Rights legislation only gives us the following right, namely:

Article 12.

  • No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Makes reference to interference with privacy, family and home. I doubt whether shopping in a public place amounts to privacy in legal terms.

So can the Data Protection Act help? The question arises whether a photograph can be construed as being ‘personal data’ requiring fair processing under the Data Protection Act 1998 or even, if race or ethnic origin can be identified whether it constitutes ‘sensitive personal data’ requiring an even higher degree of fair processing. The first requirement for the photo to be classified as ‘personal data’ and therefore fall within the protection of the Act, is that it identifies a living individual. Interesting. This will depend on whether the lady can be identified by the photograph. If she can, then the photo is arguably personal data. If not, then we don’t even reach the first hurdle.

Thereafter, numerous hurdles have to be overcome in order to fulfil the requirements for ‘relevant filing system’ and whether the personal data is being processed ‘fairly and in accordance with the act’. The High Court was particularly brutal on the matter in Murray v Express Newspapers & Big Pictures (UK) Ltd [2007 aka JKRowling v Rita Skeeter where photographs (using a long lens, which is not the case here) were taken of JK Rowling’s son without permission. The photographs were subsequently published (unlike this case where we do not know the intended use).

The Judge’s lengthy conclusion was that ” there remains… an area of routine activity which when conducted in a public place carries no guarantee of privacy” and therefore a claim for breach of confidence should be dismissed. The judgment then went on to consider the alternative claim of failing to process data fairly and lawfully under the Data Protection Act 1998. The key findings were that:

  • the reference to ‘lawfully’ should be construed by reference to the current state of the law on the misuse of confidential information. In this case the processing was lawful as there was no breach of confidence;
  • a ‘processing condition’ was satisfied as taking the picture was in the defendant’s legitimate interests (does this mean it was ‘legitimate’ because it was not ‘illegal’?) and did not cause unwarranted prejudice to the claimant (paragraph 6 of Schedule 2);
  • the processing was generally fair, notwithstanding the fact that the picture was taken covertly using a long distance lens. However, the defendant had not informed the claimant that it had taken the photo and therefore could not comply with the obligation to provide ‘fair processing information’ (Schedule 1, Part 2);

So the bottom line is that there is not a huge amount that this poor lady can do. When dealing with this sort of situation in the past, acting for a very striking young lady whose image was taken and used by a high street store in their high profile marketing campaign, was to play the public perception card and rely on them to ‘do the right thing’ in order to avoid public vilification. That time, they did do the right thing. This time, I wonder if the chap deleted the photo or has posted it on social media….

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