Paul Weller, Article 8 and the recognition of “image rights” – Hugh Tomlinson QC

30 04 2014

nophoto“Image rights” are controversial  in English law.  The legal recognition of a right for a person to control the uses to which their image is put would have profound implications, not least for the tabloid press. Mail Online is, unsurprisingly, concerned that the grant of such rights would have a serious adverse impact on its business model. It complained following the recent Weller decision, that the court appeared to have created an “unfettered image right for children” (see Louise Turner’s recent post) and said that it was intending to appeal.

The decision in Weller is not expressly based on “image rights” – in fact, Dingemans J is at pains to emphasise that they are not recognised in English law ([19]).  Whether or not the decision, in substance, amounts to a recognition of image rights is a matter for another post.  In this post I want to discuss the explicit recognition of such rights in English law.

Image rights in English Law

In cases involving photographs the defendants have, from time to time, argued that restrictions on their publication would be tantamount to granting an “image right”. For example, in the case involving a photograph of J K Rowling’s child taken in the street, Patten J said

“if the law is such as to give every adult or child a legitimate expectation of not being photographed without consent on any occasion on which they are not, so to speak, on public business then it will have created a right for most people to the protection of their image” (see Murray v Big Pictures [2007] EWHC 1908 (Ch), [65]).

When allowing the claimant’s appeal, the Court of Appeal were keen to make it clear that they did not accept, “as the judge appears to suggest … that, if the claimant succeeds in this action, the courts will have created an image right”. ([2008] EWCA Civ 446): in other words, there was a claim arising out of the taking of a photograph but this was certainly not an “image right”.

The spectre of “image rights” was also raised in the well known Catherine Zeta-Jones/Michael Douglas wedding photograph case, Douglas v Hello!  The defendant argued that to allow a claim based on confidential information in a photograph would be to grant an “image right”. Lord Hoffmann said

“There is in my opinion no question of creating an ‘image right’ or any other unorthodox form of intellectual property. The information in this case was capable of being protected, not because it concerned the Douglases’ image any more than because it concerned their private life, but simply because it was information of commercial value over which the Douglases had sufficient control to enable them to impose an obligation of confidence” ([2007] UKHL 21).

Image Rights in other jurisdictions

In contrast, courts in the United States have, for many years recognised a “right of publicity” – where a person’s likeness is appropriated for commercial purposes.  This right is both an aspect of the privacy tort and and independent common law right.  As the Second Circuit Court of Appeals said in Haelan Laboratories v Topps Chewing Gum (1953) 202 F.2d 866

in addition to and independent of that right of privacy …  a man has a right in the publicity value of his photograph, i.e., the right to grant the exclusive privilege of publishing his picture [10]

This right was affirmed by the Supreme Court in Zacchini v Scripps-Howard Broadcasting Co 433 US 563 (1977).  In 2010 the Supreme Court refused certiorari to an unsuccessful defendant in the Georgia image rights case of LFP Publishing Group v. Toffoloni (see our post here).

Image rights have long been in German law.  In a 1958 case the Federal Court of Justice (Bundesgerichtshof) referred to 

“the fundamental principle of a person’s freedom in his highly personal private life, in which the outward appearance of human being plays an essential part. The unauthorized publication of a portrait constitutes, as has long been recognized in legal literature, an attack on the freedom of self-determination and the free expression of the personality”, (BGHZ 26, 349).

Image rights have long been recognized in France – dating back to an 1855 case concerning a portrait. The modern position was stated in the 1995 Cantona case

“every individual … has an exclusive right to his own image, as an attribute of his personality, permitting him to authorize – or to refuse to authorize – its reproduction, to decide the conditions and circumstances of this reproduction and to oppose its use, by any means, without his express or implied consent” (TGI Nanterre, 1e Ch, 6 April 1995).

Image rights and Article 8 

Where French law leads, Article 8 often follows. In a number of decisions in recent years, the Court of Human Rights has suggested that Article 8 includes an “image right”.   For example, in Giorgi Nikolaishvili v. Georgia (Judgment of 13 January 2009), the First Section of the Court said:

the concept of private life includes elements relating to a person’s right to his or her image, and that the publication of a photograph, without the consent of its owner, even if this act is devoid of any specific aim, constitutes an interference under Article 8 of the Convention” [121]

In the case of Khuzhin and Others v. Russia (Judgment of 23 October 2008) the Court reiterated that “the concept of private life includes elements relating to a person’s right to his or her image and that the publication of a photograph falls within the scope of private life” [115]

The position was put most clearly by the Second Section of the Court in the case of Reklos and Davourlis v. Greece (Judgment of 15 January 2009)

“A person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one’s image is thus one of the essential components of personal development and presupposes the right to control the use of that image. Whilst in most cases the right to control such use involves the possibility for an individual to refuse publication of his or her image, it also covers the individual’s right to object to the recording, conservation and reproduction of the image by another person. As a person’s image is one of the characteristics attached to his or her personality, its effective protection presupposes, in principle and … obtaining the consent of the person concerned at the time the picture is taken and not simply if and when it is published. Otherwise an essential attribute of personality would be retained in the hands of a third party and the person concerned would have no control over any subsequent use of the image”. [40]

The problems which would result from the development by the Strasbourg Court of an Article 8 “image right” have long been recognised by the English press.  In 2010, they intervened (through the Media Lawyers’ Association) in the cases of Von Hannover (No.2) and Axel Springer to argue that Article 8 does not create or require the creation of an image right.  A copy of their intervention can be found here [pdf].  

This argument was noted by the Grand Chamber (Von Hannover v Germany (No.2), Judgment of 7 February 2012, [92]) but was rejected.  The Grand Chamber unanimously held

“Regarding photos, the Court has stated that a person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one’s image is thus one of the essential components of personal development. It mainly presupposes the individual’s right to control the use of that image, including the right to refuse publication thereof (see Reklos and Davourlis v. Greece .. § 40).

The position in relation to image rights under Article was summarised by Judge Pinto de Albuquerque in the recent Grand Chamber case of Söderman v. Sweden (Judgment of 12 November 2013):

The Convention guarantees the right to protection of one’s image. Filming or photographing a person without her or his consent infringes core personality rights, since a person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one’s image is thus one of the essential components of personal development. The ambit of protection of this right is defined broadly, to include all situations and events in which a person’s image is captured without his or her knowledge and consent and regardless of the private nature of the person’s environment. … The protection of a person’s picture against abuse by others is an obligation of States Parties, which must prevent violations from occurring and provide for remedies for violations that have already occurred, States do not have a discretion when providing for these remedies.” (footnotes omitted)

In short, it is clear that the Strasbourg court has recognised a “right to the protection of one’s image” as an essential component of the bundle of rights protected by Article 8.  Many commentators have criticised the apparently ever-widening scope of Article 8 – its apparently inexorable tendency to leave the area of “classical human rights” (protection against searches and other actions by state agents) and to spread out over the whole of human experience (see for example, Raymond Wacks).  Nevertheless, the case law of the Court of Human Rights is clear and the English courts have a duty to follow it.

Image rights and the Positive Obligation

The Convention guarantee to of the protection of a person’s right to his or her image does not just apply in disputes between the individual and the state. The positive obligation of the domestic Courts to give effect to Article 8 rights as between private individuals (see my post here) means that English law is required to fashion an “image right” in cases between private parties.

In other words, if the media use a photograph of an individual without his or her consent there is a strong argument that, as a result of the Article 8 case law, the English courts should provide a remedy.  The tort of misuse of private information has been fashioned from the equitable remedy for breach of confidence as a result of the positive obligation and the fact that, under section 6 of the Human Rights Act 1998, Courts are “public authorities”.  It is strongly arguable that, in the same way the English courts are under a positive obligation to fashion an “image right”, perhaps as a development of the tort of misuse of private information. If the Daily Mail is right and the Weller case does, in reality, involve the recognition of an “image right” this is, perhaps, a conclusion that the Supreme Court should now embrace, bringing the position in England into line with that in France, Germany and the United States.

Hugh Tomlinson QC is the joint author of The Law of Human Rights, 2nd Edn, OUP, 2009, and an editor of Inforrm

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5 06 2014
IAPP Privacy and Freedom: A review by Lawrence Serewicz (@lldzne) | Blog Now

[…] See also this analysis http://www.panopticonblog.com/2014/01/16/the-googlesafari-users-case-a-potential-revolution-in-dpa-litigation/ The Weller decision that is the most recent application of the misuse of personal information tort is here http://www.bailii.org/ew/cases/EWHC/QB/2014/1163.html [2014] EWHC 1163 (QB) The judgement provides a good summary of the case law leading to the decision. Imagine rights, let alone personal information rights, is another field to consider. http://inforrm.wordpress.com/2014/04/30/weller-article-8-and-the-recognition-of-image-rights-hugh-to… […]

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