UK may need law against secret filming and photography after European Court ruling – James Michael

21 November 2013 by

A-photographer-with-a-cam-006Söderman v. Sweden – (application no. 5786/08) – Read judgment

The European Court of Human Rights has decided that it is a violation of the right to privacy if a country does not have a law prohibiting surreptitious photography of people. The ruling has serious implications for paparazzi, and would have been useful to Princess Diana.  A ready-made bill exists in the form of a draft published by the Law Commission for England and Wales in 1981.

On 12 November the Grand Chamber of the European Court of Human Rights ruled that Sweden’s lack of a legal ban on invading personal privacy by surreptitious photographs violated the right to privacy. The case involved a camera hidden in the bathroom by the stepfather of a fourteen-year old girl. (Söderman v. Sweden,application no. 5786/08).

This was a violation of the Article 8 right to respect for private life of the European Convention on Human Rights. The Swedish legal system at the time did not prohibit filming without someone’s consent, and so had not protected her against the violation of her privacy. The violation was aggravated by the fact that she was a minor, that the incident took place in her home and that the offender was a person whom she was entitled to trust.

The Swedish law on pornography would not have applied because if the film, which had been destroyed by the girl’s mother, had still existed, the material would hardly have qualified as pornographic. Swedish law on sexual molestation did not apply because it required the offender to intend for the victim to find out about it or that the offender was indifferent to the risk of the victim finding out.

The Court noted that the absence of a provision covering covert or non-consensual filming or photography had long been a matter of concern in Sweden. New legislation designed to cover an act such as the one in Ms Söderman’s case was entered into force in July 2013. Sweden was ordered to pay Ms Söderman €10,000 euros for non-pecuniary damage and €29,700 for costs and expenses.

Those with an interest in privacy law and long memories can remember that in March 1982 photographs of Princess Diana, then five months pregnant and wearing a bikini. appeared in both the Sun and the Daily Star.  Although no legal action was taken, the Palace condemned the publications. An article in the New Law Journal (James Michael, ‘Privacy and the Royal Picture,’ March 1982) commented that if the Law Commission’s draft bill on the law of confidence, published in October 1981, had been adopted, its clause 5 would have imposed an obligation of confidence on those ‘who improperly acquire information from another person’.  That almost certainly would have covered the surreptitious photography because clause 5(2)(d)(ii) listed the use of a ‘technical device capable of being used for carrying out such surveillance’.

Thirty-two years on, the Law Commission recommendations have not been adopted. On 7 November 1993 the Mirror newspaper published a collection of photographs of Princess Diana exercising at a gym.  Bryce Taylor, the owner of the gym, had installed a hidden camera, and sold the photographs to the Mirror Group for an estimated £100,000.  Princess Diana threatened to take legal action. Most of the argument was over whether the existing law of confidence applied, and Taylor’s defence was that she was exercising in front of a window and could be seen from outside, so the information about her appearance was not confidential. The case was settled out of court.

This post first appeared on Inforrm’s Blog and is reproduced here with permission and thanks. James Michael is Senior Research Fellow at the Institute of Advanced Legal Studies

UKHRB postscript: Readers may be interested in the concluding paragraph of the judgment, which explains some of the reasoning:

Having regard to the all the above-mentioned considerations, the Court is not satisfied that the relevant Swedish law, as it stood in September 2002, when the specific act of the applicant’s stepfather in attempting to covertly film the applicant naked in their bathroom for a sexual purpose occurred, ensured protection of her right to respect for private life in a manner that, notwithstanding the respondent State’s margin of appreciation, complied with its positive obligations under Article 8 of the Convention. The act in question violated the applicant’s integrity; and was aggravated by the fact that she was a minor, that the incident took place in her home, where she was supposed to feel safe, and that the offender was her stepfather, a person whom she was entitled and expected to trust. However, as the Court has found above, neither a criminal remedy nor a civil remedy existed under Swedish law that could enable the applicant to obtain effective protection against the said violation of her personal integrity in the concrete circumstances of her case.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: