Say Cheeese…

I’ve recently had a conversation with a friend of mine, who happens to be a solicitor specialising in defamation, privacy and data protection, around a pretty mundane topic – the impact of the UK’s most beloved law – GDPR – on the use of video surveillance in the public sector. Exciting, right!?

Fortunately, the conversation went off at a tangent a bit and instead we talked about a recent court case you may’ve heard about – a man was arrested for ‘allegedly’ trying to covertly film a police officer. In the era when everyone has a smart phone with a camera and even police officers and security guards use body-worn cameras, I was curious as to what the law has to say about our privacy rights. So after the conversation with my friend, the position is as follows.

Can I take a photo of a random stranger in a public place?

Surprisingly, the short answer would be ‘Yes, you can’. It is not illegal in the UK to take photographs or video footage in public places unless it is for criminal or terrorist purposes. Social ethics aside, you can take photos / film people without asking their permission as long as do not intend to use their photos for commercial purposes, or publish or edit it in any way that may be seen as defamatory. NB! persistent or aggressive photography of a single individual may come under the legal definition of harassment, so don’t do that! NBB! There are a few places in the UK that, whilst ‘public’, have a statutorily-imposed ‘No Photography’ policy – e.g. military bases, factories owned by the Crown Trafalgar Square, Parliament Square etc.

Can I take a photo of random a stranger in a private place?

This is more difficult. On the one hand, there is no general tort of "invasion of privacy" in England and Wales (for those interested – this is the decision in the House of Lords case of Wainwright v Home Office). On the other, a right to privacy has long been recognised and protected under English law in different guises, most notably under Article 8 of the Human Rights Convention. Article 8 says: ‘everyone has the right to respect for his private and family life, his home and his correspondence.’ The key question in determining whether taking a photo of a person in a private place is protected is whether ‘the person in question had a reasonable expectation of privacy’ (the House of Lords decision in Naomi Campbell case). I would imagine that the answer for most people would be ‘Yes’, which basically means that it would be illegal to take a photo / film a person in a private place. Of course, if you are a celebrity, then in deciding whether you had a reasonable expectation of privacy you need to factor that in!

What about the police?

Broadly, with a few exceptions, people can film or photograph police personnel in public places and police have no power to stop them. One of the main exceptions is where filming / photographing is for terrorist activities. In terms of whether the police can take photos or video of you, the answer is also ‘Yes’. Article 8 specifically confirms that ‘Public authorities may interfere with the exercise of this right for various specific purposes insofar as is necessary in a democratic society, including the protection of the rights and freedoms of others.’ In other words, as long as a police officer reasonably considers that filming / taking photos of a person is in the interest of public policy (e.g. prevention of crime, protection of public, etc.) the filming / photographing is allowed.

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