The Right to Privacy

The image shows Gustav Magnar Witzoe, the owner of a large part of Scottish Sea Farms and thus indirectly the owner of several million salmon living in cages on the West Coast, although strangely they do not appear among the hundreds of images posted by him on his Instagram account, which has 118,000 followers. I am entirely free to publish it without fear, because it’s been published with his consent and there is no conceivable basis for any valid legal complaint, let alone court action.

Similarly, anyone posting a selfie online should be aware that if the image is shared by someone else, there is absolutely nothing that the poster can do about that. The very act of publishing is making something public, the clue is in the name.

This is topical, because this week the well known anti fish farm campaigner Don Staniford has received an extraordinary request from Mr Witzoe’s company to remove from his blog images of three individuals posted by themselves on sites including Linkedin, a site that publishes information, including photographs, of people in the business community and has nothing whatsoever to do with Scottish Sea Farms. Two of them are no longer employees.

The company has threatened to report Don to the “Information Commissioner’s Office”. When we last looked, the Commissioner, a nice fellow called Ken Macdonald, had his hands full handling complaints about Freedom of Information requests to local authorities and other public sector bodies and his statutory responsibilities did not extend to the activities of anti fish farm campaigners. It seems unlikely that he has decided to follow Police Scotland in becoming an unpaid back up act for aquaculture.

There has been a tendency recently for fish farm companies to claim rights that they simply do not have. I wrote a few months ago about their ridiculous quoting of a statute that was introduced to stop unauthorised raves on farm land in attempts to prevent activists taking photographs of diseased and dying fish. The lesson in this is that one should read the Act before waving it in someone’s face.

Data Protection legislation has also been used recently to threaten someone taking drone footage of the disgusting scenes when salmon are processed by thermolicing, a process whereby mature fish are pumped via plastic tubes into a bath of warm water in order to remove the sea lice that are literally eating them alive. This is a blatant attempt to suppress worried citizens doing what Marine Scotland, the Fish Health Inspectorate and SEPA should be doing on our behalf, but don’t.

So, what is the position regarding the taking and publication of images? What if a third party takes an image without a person’s consent and wishes to publish it?

Under Article 8 of the European Convention on Human Rights we DO have the right to protect our image, unless we have expressly or impliedly agreed to its being published. Here is an extract from the Guide published by the European Court:

“Right to one’s image and photographs; the publishing of photos, images, and articles

Regarding photographs, the Court has stated that 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 (López Ribalda and Others v. Spain [GC], §§ 87-91 and the references cited therein). Although freedom of expression includes the publication of photographs, the Court has nonetheless found that the protection of the rights and reputation of others takes on particular importance in this area, as photographs may contain very personal or even intimate information about an individual or his or her family (Von Hannover v. Germany (no. 2) [GC], § 103). Even a neutral photograph accompanying a story portraying an individual in a negative light constitutes a serious intrusion into the private life of a person who does not seek publicity (Rodina v. Lat- via, § 131). The Court has articulated the key factors to consider when balancing the right to reputation under Article 8 and freedom of expression under Article 10 as follows: contribution to a debate of general interest; how well known is the person concerned and what is the subject of the report?; prior conduct of the person concerned; content, form and consequences of the publication; circumstances in which the photos were taken; and severity of the sanction imposed (ibid., §§ 108-113; Axel Springer AG v. Germany [GC], §§ 89-95; Couderc and Hachette Filipacchi Associés v. France [GC], §§ 90-93; Rodina v. Latvia, § 104).”

As usual with European law the statement is very principled and explains the reasons why an image is protected. It is clear that anything we publish ourselves isn’t, unless there is added a negative story. It’s also clear that an image taken from a distance far enough for individuals not to be recognisable, say the drone scene referred to above, would not give ground for action. In any event, such action would need to be taken by the subject of the photograph, not by his employer.

Just be careful, everyone, make sure faces aren’t identifiable and keep safe!

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