The European Court of Human Rights (ECHR) this week upheld a complaint that the taking of a new-born baby’s photograph without the parents’ prior consent was a breach of his right to privacy under Article 8 of the European Convention on Human Rights.
The Court held unanimously that there had been:
1 A violation of Article 6 (1) (right to a fair hearing) of the European Convention on Human Rights on account of the Greek court’s dismissal of the applicant’s complaint about photographs having been taken of their new-born baby without their consent; and,
2 A violation of Article 8 (right to respect for private and family life) of the Convention in respect of the baby son.
Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant (s) 8,000 euros (EUR) in respect of non-pecuniary damage.
Following one or two problems with the baby after his birth the baby was placed in a sterile unit in the hospital. The hospital offered a photography service to its patients, when offered they refused objected due to their wish not to intrude into the sterile enviroment. In any event a professional photographer took two photographs of the baby, which were then offered to one of the parents.
The parents brought proceedings in the ECHR against the Greek government for, among other things, infringement of Article 8 of the Convention, the right to respect for private and family life.
The Court reiterated that the concept of private life was a broad one which encompassed the right to identity. It stressed that an image of a person which revealed his or her unique characteristics constituted one of the chief attributes of his or her personality. The Court added that effective protection of the right to control this image presupposed, obtaining the consent of the person concerned when the picture was being taken and not just when it came to possible publication.
The Court observed that, since he was a minor, the right to protection of his image had been in the hands of his parents. Their consent had not been sought at any point, not even with regard to the keeping of the negatives, to which they objected. The Court noted that the negatives could have been used at a later date against the wishes of those concerned.
The Court concluded that the Greek courts had not taken sufficient steps to guarantee the right to protection of his private life, in breach of Article 8.
It is an unusual case but one which no doubt will have implications for the press and the so called privacy laws in the UK.