Violation of right to respect for private life by picture taken in hospital
15-01-2009 Print this page
Violation of right to respect for private life by picture taken in hospital: the applicants’ prior consent to the taking of their son’s picture was indispensable in order to es-tablish the context of its use
"41. In the present case the Court first observes that, as re-gards the conditions in which the offending pictures were taken, the applicants did not at any time give their consent, either to the management of the clinic or to the photographer himself. In this connection it should be noted that the applicants’ son, not being a public or newsworthy figure, did not fall within a category which in certain circumstances may justify, on public-interest grounds, the recording of a person’s image without his knowledge or consent (see Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, § 37, 26 February 2002). On the contrary, the person concerned was a minor and the exercise of the right to protection of his image was overseen by his parents. Accordingly, the applicants’ prior consent to the taking of their son’s picture was indispensable in order to establish the context of its use. The management of the clinic I. did not, however, seek the applicants’ consent and even allowed the photogra-pher to enter the sterile unit, access to which was restricted to the clinic’s doctors and nurses, in order to take the pictures in question."
The key issue in the present case is not the nature, harmless or otherwise, of the applicants’ son’s rep-resentation on the offending photographs, but the fact that the photographer kept them without the applicants’ consent. The baby’s image was thus re-tained in the hands of the photographer in an identifiable form with the possibility of subsequent use against the wishes of the person concerned and/or his parents
"42. In addition, the Court finds that it is not insignifi-cant that the photographer was able to keep the negatives of the offending photographs, in spite of the express request of the applicants, who exercised paren-tal authority, that the negatives be delivered up to them. Admittedly, the photographs simply showed a face-on portrait of the baby and did not show the applicants’ son in a state that could be regarded as degrading, or in general as capable of infringing his personality rights. However, the key issue in the present case is not the nature, harmless or otherwise, of the applicants’ son’s representation on the offending photographs, but the fact that the photographer kept them without the appli-cants’ consent. The baby’s image was thus retained in the hands of the photographer in an identifiable form with the possibility of subsequent use against the wishes of the person concerned and/or his parents (see, mutatis mutandis, P.G. and J.H. v. the United King-dom, no. 44787/98, § 57, ECHR 2001 IX).
43. The Court notes that, during the examination of the case at issue, the domestic courts failed to take into ac-count the fact that the applicants had not given their consent to the taking of their son’s photograph or to the retention by the photographer of the corresponding negatives. In view of the foregoing, the Court finds that the Greek courts did not, in the present case, suffi-ciently guarantee the applicants’ son’s right to the protection of his private life.
There has therefore been a violation of Article 8 of the Convention."
IPPT20090115, ECHR, Reklos and Davourlis v Greece
no. 1234/05
