Photography and Privacy

Your child is at a gymnastics class. A stranger is photographing her child and sometimes includes your child in the frame. She also takes an occasional close-up of your child, with no other children in the frame. You are not happy about this and ask her to stop. She refuses. What can you do?
 
As the legal guardian of your child, you have the right to act on her behalf in such circumstances, but you may be surprised to find that your only option to stop the photography may be to remove your child from the class.
 
Copyright
Many people believe that they own “copyright” in their own image. This is a complete misunderstanding of the idea of copyright, which exists to protect creative work, and not the subject of the work. Copyright exists in the work, say a photograph, and it is usually owned by the creator who would be the photographer. The subject of the photograph has no ownership in the image.
 
In general, a photographer does not require your consent to photograph you, just as a writer does not require consent to write a book about you, or a musician to sing a song about you. You would have no right to demand that a photographer delete or destroy an image she has made of your child.
 
Privacy
 If the photography is done despite your objections, is there an infringement of the right to privacy? This question is quite troubling and certainly not answered in any precise way by Canadian or BC law. The law seeks to balance the reasonable use of photographs against a reasonable expectation of individual privacy.
 
Privacy law in Canada is mostly concerned with regulating the collection and storage of private information. A photograph of your child could be construed to be private information, but this has not been tested in the courts and it seems unlikely that a simple photograph, devoid of other personal details, would be regulated in this way.
 
There are rights to do with being spied upon. In BC, the Privacy Act tries to take into account a range of factors to determine what level of privacy one can reasonably expect in a situation. These would include where you are, what you are doing, and so on. Sneaking about at night and peering into windows with telephoto lenses is obviously very different from taking photographs of people as you walk down a busy street. A photographer may not trespass on your property to photograph you, but that does not mean that if you are on private property, even your own, that the photographer may absolutely not photograph you. Reasonableness must be considered.
 
Standing in your driveway, you could be observed and photographed from the street, but in your bedroom you have a reasonable expectation that you would not. If, however, you were leaning half-naked out of your bedroom window, yelling at passers-by, then you could expect to draw the attention of others, including photographers.
 
When you are on private property, the owner or tenant of the property could certainly stipulate that a photographer was not permitted to enter and take photographs, or may not photograph in certain areas or situations. The owner of a gymnasium might post “No Photography” signs, or request that a photographer does not take photos, and the photographer would have to comply. And even if photography was permitted at a public gym, it would not be reasonable to photograph strangers in the changing rooms.
 
Use of your image
 This is where you do have clear rights. Put simply, without your consent the photographer may not use your image for the purpose of selling, advertising or trading in goods or services. If you appear in the background of an image which is primarily of something else, then privacy law does not apply, and the same applies to group photos (although I imagine that some groups as a whole, say a sports team, would have certain rights). However, you have no control over the image where the photograph is used in reporting the news.
 
All this sounds straightforward, but it may not be. If a photographer has pictures of you in a public exhibition, is this art or a commercial enterprise? What if she sells prints of her art? This is where things get complicated, drawing a line between art and commerce. There is a grey area which has not, in this context, been clarified by the courts.
 
A decision in Quebec went against a magazine which had published a picture of a girl on the steps of a public building. The case came before the Supreme Court of Canada and it ruled that her privacy rights, under Quebec law, had been violated. How this would apply in the rest of Canada is unclear.
 
These are times when our notions of privacy are shifting. There are growing concerns about how we are seen in public. There is also a strong feeling that we have a right to control any commercial use made of our image, and to profit from such use. Somewhat at odds with this, is the tendency to post personal pictures, opinions and information online, and a trend towards exposing ourselves in ways which, until recently, would be unimaginable? These are paradoxical times, and the law has a hard time balancing our disparate expectations.
 
 

^ TOP