sou · GYB3103 · 2010-12-23 00:00:00 — These rights are of particular importance for open societies (cf. RF 1:1 st. 2). Photographing by the can undoubtedly affect a persons willingness to take part in a protest, even if this measure does not go so far as to restrict the right. This in itself strengthens the argument that, while photographing of relevant in deciding whether there was an interference with private life: first, whether the taking of photographs amounted to an intrusion into the individuals privacy, whether it related to private matters or public incidents, and whether the material thus obtained was envisaged for a limited use or was likely to be made available to the general public.74 The first factor seems to beg the question but can presumably be connected to the idea of a reasonable or legitimate expectation of privacy. Where people meet in a public place they can attempt to conceal the fact of their meeting by choosing a remote, quiet, dark or deserted area. But the risk of being seen will almost invariably exist. Telephoto lenses mean that even meeting places chosen some distance from other people can be observed. One can argue that there will rarely be a legitimate expectation of not being seen. However, a legitimate expec- tation of privacy is obviously a shifting standard. The continual sophistication of surveillance technology means that, soon, objectively speaking, a person can never have a legitimate expectation of total privacy. Thus, I would say that too much weight should not be put on this factor. As shown below, nor does the Court. In any event, it was clear in v. that the photo- graphs were taken openly, not secretly and the activity – the demon- stration – was meant to be seen. Moreover, the photographs taken were not used to identify individuals. The Commission accordingly found no interference with private life. As shown below, however, subsequent cases have sharpened the requirements on states. In v. UK, the applicant was arrested in her home by soldiers who suspected her of involvement in terrorism.75 She was later photographed at a detention centre, without her knowledge or consent. The Court stated that this taking of photographs was an interference with the applicants private life. The fact that the appli- cant had been taken from her home was presumably important to this finding, but so too was the fact that the photographing occurred without her knowledge. However, another important factor was the use to which the photograph was put, as part of an individual file. Similarly, in Tsavachidis v. , the applicant had been syste- matically shadowed and observed by state agents and extensive demonstrators must be possible, it should require positive lawful authority. Further con- sideration of this issue is outside of the scope of the present report. 74Ibid, at para. 7528 October 1994, A/300-A. information had been collected on his activities. The Commission considered this to be an interference with private life.76 v. UK the Court confirmed the approach in Tsavachidis and stated that: There are a number of elements rele- vant to a consideration of whether a person's private life is concerned in measures effected outside a person's home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public , a person's reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor. A person who walks down the street will, inevitably, be visible to any member of the public who is also present. Monitoring by technological means of the same public scene (for example, a security guard viewing through closed-circuit television) is of a similar character. Private life considerations may arise, however, once any systematic or permanent record comes into existence of such material from the public domain.77 In v. UK,78 a person suspected of a crime who had refused to answer questions was surreptitiously filmed and recorded in his cell and the prison visiting area. This was regarded as an inter- with his private life.79 In other cases, the Court has laid weight on the unexpected or unreasonable use of film and photographs which were taken of pub- licly observable activities. v. UK concerned a person who had been filmed by CCTV cameras in a custody room, in order to obtain film for use in an identity parade. He knew, or at least could be assumed to have known about the CCTV cameras, but the Court considered that there is no indication that the applicant had any expectation that the footage was being taken of him within the station for use in a video identification procedure and, potentially, as evidence prejudicial to his defence at trial.80 It was 28802/95, 28 October 1997. The case obviously has implications for any form of systematic and state collection of publicly available information on an individual. 48539/99, . 79See also v. , No. 8704/03, Decision 1 2004. Placement of detainee under permanent camera surveillance for a two week period was an interference with private life, but in the circumstances justified as in accordance with the law and necessary in a democratic society: inadmissible. The Court added: The normal use of security cameras per se whether in the public street or on premises, such as shopping centres or stations where they serve a legitimate and foreseeable purpose, do not raise issues under Article 8(1) Here, however, the regulated the security camera so that it could take clear footage of the thus an interference with private life. use of filmed identity parades was regulated not by a statute but by a simple code of prac- tice. However, the national court (at Pecks trial) had found that the had not complied with this code. The Court found therefore that the interference was not in accordance with the law. Peck v. UK concerned a person who had been filmed on CCTV cameras on a street and whose behaviour indicated that he intended to commit suicide. The footage enabled CCTV operatives to alert the in time and who helped saved his life. The footage was later distributed to the press by the local authority where the filming took place as part of a public relations exercise designed to show the benefits of CCTV surveillance, something which caused the applicant considerable distress. The Court stated that The moni- toring of the actions of an individual in a public place by the use of photographic equipment which does not record the visual data does not, as such, give rise to an interference with the individual's private life.81 However, the Court added that On the other hand, the recording of the data and the systematic or permanent nature of the record may give rise to such considerations.82 It went on to find that the retention of the data did give rise to an infringement of private life. There was a clear statutory power for the local authority to use CCTV. However, the Court found a violation of Article 13 (effective remedies) because the applicant had no effec- tive means of challenging the retention and dissemination of the images taken. Another case in which a violation was found was Sciacca v. Italy.83 This was because of the absence of a legal basis for the handing over to the press by the of a photograph of a person under house arrest. The case of v. Germany84 can also be mentioned. This concerned a positive duty upon the state to prevent the publi- applicant in the custody suite and inserted it in a montage of film of other persons to show to witnesses for the purposes of seeing whether they identified the applicant as the per- petrator of the robberies under investigation. The video was also shown during the appli- cant's trial in a public court room This ploy adopted by the went beyond the normal or expected use of this type of camera, as indeed is demonstrated by the fact that the were required to obtain permission and an engineer had to adjust the camera. The permanent recording of the footage and its inclusion in a montage for further use may therefore be re- garded as the processing or collecting of personal data about the applicant. The Court referred to Herbecq and Another v. , Nos.32200/96 and 32201/96, Commission decision of 14 January 1998, DR 92-A, p. 50774/99, 11 January 2005. 84No 59320/00, 24 2004. cation of photographs taken by paparazzi and as such is not directly applicable to open or photographing by the . How- ever, the case is further support for the view that one can clearly have a private life in public. The Court referred to the photo- graphing of the applicant when she was engaged in activities of a purely private nature. The German constitutional court had con- sidered that where the applicant objectively speaking had sought a secluded area, then she had a right to privacy and it had accordingly considered that it was permissible not to permit the publication of photographs of her in such an area. However, other photographs could be published. The Court however, stated that the public does not have a legitimate interest in knowing where the applicant is and how she behaves generally in her private life even if she appears in places that cannot always be described as secluded and despite the fact that she is well known to the public.85 Reklos and Davourlis v. Greece86 concerned the photographing of a newborn baby without the prior agreement of his parents and the retention of the negatives. The Court found this to be in vio- lation of Article 8. It stated (at para. 40) that A persons image constitutes one of the chief attributes of his or her personality, as it reveals the persons unique characteristics and distinguishes the person from his or her peers. The right to the protection of ones image is thus one of the essential components of personal develop- ment 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 individuals right to object to the recording, con- servation and reproduction of the image by another person. As a persons image is one of the characteristics attached to his or her personality, its effective protection presupposes, in principle and in circumstances such as those of the present case 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 sub- sequent use of the image.87 See now RF 2:6 st. 2 (after 1 January 2011).See also Verliere v. , 1234/05, 15 January 2009. 87Where there is a countervailing interest, in particular, freedom of expression, then the two interests have to be balanced. The Court has repeatedly disproved decision of the Austrian courts to restrict journalists' publishing of photographs of politicians on the basis that the Lastly, another case can be mentioned, v. Commissioner of for the Metropolis.88 While this is an English case, it has some relevance, because the Court of Appeal applies Article 8 of the Convention (which, as in , is incorporated into law). The case concerned the taking of a photograph of a prominent campaigner against the arms trade at a demonstration. The had feared that there might be violence at the demonstration. This did not materialize. The basis for the taking of photographs was the common law (i.e. not statutory) power of the to main- tain public order. The appellant in the case was aware of the photo- graph and subsequently requested that it be destroyed, but the refused. The Court of Appeal did not consider that the mere taking of the photograph engaged Article 8. However, the circum- stances indicated that there was no basis for bringing a prosecution against the applicant either for his acts at the time, or for his acts at a subsequent demonstration shortly after. The photograph appeared to be being retained for general intelligence purposes, as it identified the appellant and some of his acquaintances. The Court of Appeal considered that the photographs together with the fact that they were retained without explanation involved an interference with privacy. The Court proceeded to rule that the common law power to maintain public order was sufficient legal basis for taking the photo- graph and so it was in accordance with the law. However, the majority of the court considered that there was a lack of proportio- nality in the retention of the photographs. LJ considered that, where the aim in retaining photographs was protecting the community from public disorder or low-level crime, a more com- justification had to be adduced than would be the case for retention of a photograph for the purpose of protection against terrorism or really serious criminal activity.89 Summarizing these cases, I think that the following can be said.90 With a certain reservation for the Reklos and Davourlis case, which politicians have intellectual property rights in their own images. See e.g. News & CoKG v. , No. 31457/96, 2000, v. , No. 34315/96, February 26 2002, Osterreichischer Rundfunk v. , No. 35841/02 . 88[2009] EWCA 414 (21 2009) 90I will not go into the question of weighing integrity protection against the constitutional rights to freedom of information and expression under Swedish law as far as recording of visual data by private persons, for private purposes is concerned. can be interpreting as setting a new standard for simple photo- graphing, it would appear that as regards both and overt photographing or filming by the , by any technical means, it is not the activity in itself, but the retention of the record, or its insertion into a file, or its dissemination to other public authorities or private bodies which constitutes the interference with private life. Formally speaking, the origins of the photograph, film etc. are not important. The legal nature of the body actually engaged in the recording by technical means (photographing, filming etc.) public, quasi-public or private corporation, is irrelevant.91 Thus, for overt (open) filming or photographing, the must be in a position to justify the retention of the photographs or films, when and if people complain about this. Accordingly, legal autho- rity for the retention of visual records made with technical means together with safeguards (considered in the next section) must be put in place. For filming or photographing, the targets, and whatever other people are captured on film, will presumably not know about this. However, even here, there is an interference with private life as soon as the photographs are retained even if the vic- tim does not complain. As people are not in a position to com- plain about these interferences some alternative form of oversight mechanism must exist. Some form of legal authority must also exist for the dissemination in any way of recordings made by tech- nical means, whether overt or . There is no evidence that the Court considers there is a distinc- tion between digital or print retention of data. To draw such a distinction is likely to encourage the circumvention of rules. Having said this, digital storing of pictures obviously has the potential to increase greatly availability of the pictures, meaning a greater potential for unauthorized access and dissemination, with corresponding risks for damage to personal integrity. One question which is not yet fully answered is whether the Court sets a threshold of processing the data on an individual level in the case of photographing. In other words, is it first when the photograph/film is put in a file opened on an individual that an interference with private life comes into being? The problem with such an approach is also that it allows circumvention, e.g. 91 In e.g. , the photographs were taken by a private photographer, contracted by the . Using private bodies to collect visual, audio or other data can result in special problems of legal control, e.g. if one private corporation is used to carry out interception of com- munications services offered by another private corporation. Such problems can raise issues both as regards the quality of law (precision etc.) and as regards the working of safeguards. working files, or place files or theme files can be created with- out definitive identification of individuals. The Court referred to permanent or systematic records in Peck (my emphasis). Digital film or photographs are permanent as com- pared to CCTV which does not record, or where the recordings are automatically wiped by being recorded over after a few days. Such an interpretation would mean that any covertly or overtly taken digi- tal images of even unidentified people which are transferred to a com- puter or printed out could be regarded as infringing these persons private lives. In one respect this seems unreasonable. There will be many situations in which the have taken visual records of large groups of people, e.g. alleged football hooligans, or demonstrators committing offences of violence, where identification is only possible at a later, or much later stage. The may have a fairly good idea who a particular demonstrator is, without being able definitively to identify him or her. The can have good reasons for retain- ing such records for some time, pending definitive identification of the alleged offender.92 In the circumstances, it seems unreasonable to regard there as being an ongoing interference in that persons private life, if the visual records are not individualized. On the other hand, existing data protection rules anyway require an evaluation to be made regarding the necessity of filing any personal data, before such filing is allowed. Whatever the view that is taken on this point, one sees very quickly that there is an interference in that persons private life if this visual record of an as yet unidentified person is disseminated in any way – to the press definitely (see, e.g. the Sciacca case, above) but also conceivably to other authorities (e.g. social workers, as re- gards young people) or even private persons such as football supporter clubs (e.g. to ask for help in identifying the person in question) or the organizers of a protest demonstration (e.g. to warn them to be on the look out for this person who may wish to cause trouble). This is not to say that the may not have good reasons for disseminating the visual record, nor that this is in breach of the Convention. These examples simply make it clear that a visual re- cord of even an unidentified person can potentially involve an inter- in private life. 92 Where a conspiracy is long-term, such as can be the case for organized crime or security crime, the period can clearly be longer. I would say that the sensible approach would be to concede that the must be granted a large amount of discretion in deter- mining at what point a visual record becomes sufficiently individualized to become an interference in private life. And precisely because there must be discretion, it is necessary to provide some form of external oversight and control of the working of this discretion. The practical result of all this is that, while the actual recording of images – the pushing of the button – does not constitute an inter- with private life, it might as well be the case that it is. This is because as soon as the button is pressed, the must be in a position to point to legal authority for the retention of the record made to an external body entrusted with oversight of records. I should note that this does not mean that there is now a distinction between old fashioned work – following people, noting their movements and circle of contacts etc. – and the same type of work carried out by technical means. Inter alia the Tsavachidis, and Rotaru cases make clear that even the former consti- tutes an interference with private life, when it leads to the systematic collection of intelligence on a given individual. 5.3.3 Private Life in non-private zones: aural surveillance A number of states have constitutional protection of the home, but not of privacy as such. This has been used to justify leaving re- cording conversations by technical means outside of the home un- regulated, or at least, subjecting it to a lower degree of regulation. However, it seems now quite clear following Bykov that the Court regards this as an interference with private life. Although Bykov concerned participatory audio surveillance, there is no reason not to hold that any technical means to pick up conversations, e.g. directional microphones, or manually, or remotely, converting a mobile phone to a recording device and switching it on, will also involve such an interference. As mentioned, the Court held in that here the interference is constituted by the simple recording, whether or not it is used for anything (intelligence or evidence). This tougher approach can presumably be justified by the greater expectation of privacy that two people (A and B) can have if they are whispering to one another in a public square, at a distance from other people. Having said this, I should once again note how slippery this criterion is: when everyone has a mobile phone, which can be turned into an aural, or visual, recording device at the flick of switch, this must presumably affect even A and Bs legitimate expec- tations of privacy. It is, at any rate, sufficient to note that the Court clearly regards aural surveillance of a person outside the home as an interference in that persons private life whether or not that person can be said to have a reasonable expectation of privacy. I will turn now to location information. I can deal with this issue very briefly. As noted in section 2, this takes different forms. Mobile phones, even on standby, continually make available location infor- mation to base stations, allowing the general plotting of a persons movements. A mobile phone can also be remotely activated, allowing tracking even when the person possessing it considers that it is switched off. cards indicate where and when a person has entered given premises, or a zone. Bank cards indicate where and when a person has made a transaction. The development of RFID (Radio Frequency Identification) technology, whereby accessories or clothes can be tagged with electronic identifiers, means that a person having or wearing anything with such a tag can be located. Different types of sensor can be planted to register entry into, or movement in, a given area. One can argue that certain types of location information, in par- ticular, accessing (emptying) of all traffic registered in a mobile base station during a particular period does not involve an inter- with a particular persons private life. However, it is clear that the purpose and effect of the measure is to identify exactly which persons could have been present in a particular area at a given time. One can nonetheless take the approach that information on where a person has been, or even, in real time, where that person is just now, should not usually be seen as sensitive. If I accept that my mobile phone operator can track me, or that my bank knows in- stantly where I am if I make an electronic transaction, then why is it an infringement of my privacy if the also have access to this information? This argument goes more to the severity of the interference, not whether it is an interference at all, and as such relates to the type and degree of regulation necessary, considered below. two points can be made here.