In a recent case concerning the taking of a photograph of JK RowlingÂs son sought to prove that itÂ was. In that case the photograph does show the colour of the childÂs hair and the colour of hisÂ skin. It did not reveal any specific information about his physical condition other than that heÂ appears to be a normal healthy young child. JK contended that the information conveyed by hisÂ image in the photograph does consist of information about his racial or ethnic origin and hisÂ physical health precisely because it shows him to be a white Caucasian male child with no obviousÂ physical infirmities or defects.
BPL ( the photographer) stated that a person’s mere appearance is not information about his racialÂ or ethnic origin and provides no information about his physical or mental condition. At most itÂ enables certain things to be ruled out.
In Campbell ( EWHC 499) Morland J at paras 80 Â 90 rejected as irrelevant a submission thatÂ the photographs taken of Naomi Campbell were sensitive personal data because they showed her to beÂ black. But his reasoning was, I think, that she was rightly proud of her success as a black modelÂ and had therefore suffered no damage or distress by the processing of information which confirmedÂ 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 orÂ otherwise that disclose, whether from physical characteristic or dress, racial or ethnic originsÂ cannot amount to sensitive personal data.”
If a photograph and the information it contains constitutes personal data then it is hard toÂ escape from the conclusion that insofar as it indicates the racial or ethnic origin of the dataÂ subject it also consists of sensitive personal data.
The notion that a photograph also comprises sensitive personal data under s.2 (e) was rejected.Â For that to be the case it would have to be of someone with some clearly identifiable physicalÂ condition which was exposed by the photograph. A photograph of an apparently healthy individual inÂ fact tells one nothing about his actual state of health.