Revisited: “Does Article 8 mean the law should recognise image rights” – Hugh Tomlinson QC

In this feature we revisit older posts which remain of current interest. This post from March 2010 considers the implications of the Article 8 case law for “image rights”

The English common law does not recognise what French lawyers call “image rights”. In the United States such rights are an aspect of the tort of privacy – the so-called “right to publicity” (for a recent case on these see here). But English law has, up to now, not recognised such rights. This means that, unless some issue of libel, copyright or “passing off” arises, the media can publish any photograph of a person without that person’s consent.

In misuse of private information cases involving photographs the defendants have, from time to time, argued that restrictions on their publication would be tantamount to granting an “image right”. For example, in the case involving a photograph of J K Rowling’s child taken in the street, Patten J said

“if the law is such as to give every adult or child a legitimate expectation of not being photographed without consent on any occasion on which they are not, so to speak, on public business then it will have created a right for most people to the protection of their image” (see Murray v Big Pictures [2007] EWHC 1908 (Ch), [65]).

When allowing the claimant’s appeal, the Court of Appeal were keen to make it clear that they did not accept, “as the judge appears to suggest … that, if the claimant succeeds in this action, the courts will have created an image right”. ([2008] EWCA Civ 446): in other words, there was a claim arising out of the taking of a photograph but this was certainly not an “image rights”.

The spectre of “image rights” was also raised in the well known Catherine Zeta-Jones/Michael Douglas wedding photograph case, Douglas v Hello! The defendant attack a claim based on confidential information in a photograph on the basis that to allow the claim would be to grant an “image right”. Lord Hoffmann said

“There is in my opinion no question of creating an ‘image right’ or any other unorthodox form of intellectual property. The information in this case was capable of being protected, not because it concerned the Douglases’ image any more than because it concerned their private life, but simply because it was information of commercial value over which the Douglases had sufficient control to enable them to impose an obligation of confidence” ([2007] UKHL 21).

But, although they are “unorthodox” in English law, image rights have long been recognized in France – dating back to an 1855 case concerning a portrait. The modern position was stated in the 1995 Cantona case

“every individual … has an exclusive right to his own image, as an attribute of his personality, permitting him to authorize – or to refuse to authorize – its reproduction, to decide the conditions and circumstances of this reproduction and to oppose its use, by any means, without his express or implied consent” (TGI Nanterre, 1e Ch, 6 April 1995).

The right is also recognized in German law (for example in the 1958 Case, BGHZ 26).

Where France leads, the Article 8 case law often follows. In a number of decisions in recent years, the Court of Human Rights has suggested that Article 8 includes an “image right”.   For example, in Giorgi Nikolaishvili v. Georgia (Judgment of 13 January 2009), the First Section of the Court said:

“the concept of private life includes elements relating to a person’s right to his or her image, and that the publication of a photograph, without the consent of its owner, even if this act is devoid of any specific aim, constitutes an interference under Article 8 of the Convention” [121]

The position was put most clearly by the Second Section of the Court in the case of Reklos and Davourlis v. Greece (Judgment of 15 January 2009)

“A person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one’s image is thus one of the essential components of personal development 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 individual’s right to object to the recording, conservation and reproduction of the image by another person. As a person’s image is one of the characteristics attached to his or her personality, its effective protection presupposes, in principle and … 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 subsequent use of the image”. [40]

The positive obligation of the Courts to give effect to Article 8 rights as between private individuals (see my post here) means that English law is required to fashion an “image right” in cases between private parties. In other words, if the media use a photograph of an individual without his or her consent there is a strong argument that, as a result of the Strasbourg Article 8 case law, the English courts should provide a remedy, in other words should enforce an “image right”. It seems likely that English law is not far away from the recognition of “image rights” after all.