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.

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