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Eric Swetsky's legal column published in Marketing Magazine, August 1998

The Use of a Person's Photograph Without Their Consent

The Supreme Court of Canada examines the issue

Seventeen year old Pascale Aubry was sitting on the steps of a building in Montreal when photographer Gilbert Duclos snapped her picture. The photo was published in Vice Versa, a magazine dedicated to the arts. Aubry claimed that she soon became the object of ridicule among her friends. Aubry neither knew her photo had been taken, nor consented to its publication. She sued for the invasion of her privacy, and the case went all the way to the Supreme Court of Canada. Aubry was successful at every level.

An advertising agency's use of someone's photograph without their consent happens frequently. It can occur, for example, when a focus group is videotaped sampling a new product, and the agency uses a clip in an ad without the person's consent. Is this legal?

While the Aubry case was decided under Quebec law (since property rights in Canada are subject to the laws of the respective Province), the observations of Canada's highest court provides us with extraordinary insight on the topic.

The majority of the Supreme Court said that "if the purpose of the right to privacy...is based on...the control each person has over his or her identity... this control implies a personal choice." The choice that one has would be the choice to not have their image published. The Court continued: "(there is) an infringement of the person's right to (privacy)...as soon as the image is published without consent and enables the person to be identified."

The Court then noted that a person's right to privacy is not absolute. Examples given by the court where a person's photo could be published without consent are where one is "engaged in a public activity, or has acquired a certain notoriety", or those whose professional success depends on public opinion or where "a previously unknown individual is called on to play a high-profile role in a matter within the public domain, such as an important trial, a major economic activity having an impact on the use of public funds, or an activity involving public safety."

The Court continued:

"it is also recognized that a photographer is exempt from liability, as are those who publish the photograph, when an individual's own action, albeit unwittingly, accidentally places him or her in the photograph in an incidental manner. The person is then in the limelight in a sense. One need only to think of a photograph of a crowd at a sporting event or a demonstration. ...On the other hand, the public nature of the place where a photograph was taken is irrelevant if the place was simply used as a backdrop for one or more persons who constitute the true subject of the photograph."

The Court then went on to reject a body of law that exists in this area in the United States. That US law states that the publication of a photo without consent is permitted if it serves a "socially useful" purpose. To this, the Supreme Court of Canada stated:

"a photograph of a single person can be 'socially useful' because it serves to illustrate a theme. That does not make its publication acceptable, however, if it infringes the right to privacy. We do not think it appropriate to adopt the notion of 'socially useful' for the purpose of legal analysis."

The Supreme Court of Canada also refused to accept the argument that the public has an absolute interest in seeing any work of art. The Court said that in assessing a matter, the artist's right to publish their work must be taken into consideration, but so too must the subject's right not to consent.

The Court also rejected the notion that the right to publish a photograph ought to be given precedence over the individual's right to remain private due to the logistical difficulties in obtaining consent:

"to accept such an exception would, in fact, amount to accepting the photographer's right is unlimited, provided that the photograph is taken in a public place, thereby extending the photographer's freedom at the expense of others. We reject this point of view. In (this) case, (Aubrey's) right to protection of her image is more important than the (photographer's) right to publish the photograph...without first obtaining her permission."

How can we summarize this legal decision. It would be wonderful merely to have this decision from a Court of Appeal; to have it from the Supreme Court borders on the breath-taking since cases of this nature rarely rise to such a legally stratospheric level. In definitive language from the highest court in the country, we now know two important points that will affect all readers of this magazine at one time or another. First, one does not need consent from those photographed in crowd scenes, or from those who because of their position, professional duties or due to some unique circumstance are brought into the public arena. Second, one may well require consent to publish the photo of anyone else.