Is a Photograph sensitive?

In a recent case concerning the taking of a photograph of JK Rowling’s son sought to prove that it was. In that case the photograph does show the colour of the child’s hair and the colour of his skin. It did not reveal any specific information about his physical condition other than that he appears to be a normal healthy young child. JK contended that the information conveyed by his image in the photograph does consist of information about his racial or ethnic origin and his physical health precisely because it shows him to be a white Caucasian male child with no obvious physical infirmities or defects.

BPL ( the photographer) stated that a person’s mere appearance is not information about his racial or ethnic origin and provides no information about his physical or mental condition. At most it enables certain things to be ruled out.

In Campbell ([2002] EWHC 499) Morland J at paras 80 – 90 rejected as irrelevant a submission that the photographs taken of Naomi Campbell were sensitive personal data because they showed her to be black. But his reasoning was, I think, that she was rightly proud of her success as a black model and had therefore suffered no damage or distress by the processing of information which confirmed her racial identity. In paragraph 91 of the judgment he added that:

“However, it should not be understood that I am ruling that images whether photographic or otherwise that disclose, whether from physical characteristic or dress, racial or ethnic origins cannot amount to sensitive personal data.”

If a photograph and the information it contains constitutes personal data then it is hard to escape from the conclusion that insofar as it indicates the racial or ethnic origin of the data subject it also consists of sensitive personal data.

The notion that a photograph also comprises sensitive personal data under s.2 (e) was rejected. For that to be the case it would have to be of someone with some clearly identifiable physical condition which was exposed by the photograph. A photograph of an apparently healthy individual in fact tells one nothing about his actual state of health.

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