July 19, 2017
By Ingrida Milkaite, Ghent University
The case of Bogomolova v. Russia concerns the use of an unauthorised photograph of a minor’s face on the front page of a booklet promoting adoption and help for orphans. It proves that the publication of pictures of children without parental consent may have a significant social impact on the family and may violate article 8 of the European Convention of Human Rights (ECHR), protecting the right to private and family life.
The applicant, a single mother, and her son (born in 2001) live in Russia and are Russian nationals. In 2007 the applicant learned that a photograph of her son had been published on the front page of a booklet aiming at providing information on and promoting adoption. It was entitled “Children need a family” and was issued by the Centre for Psychological, Medical and Social Support (hereinafter the Centre) the role of which was to protect orphans and assist families in adopting them. The applicant was not informed about the booklet and the use of her son’s picture on its cover page. After an unsuccessful attempt to institute national criminal proceedings, the applicant initiated civil proceedings. She sought non-pecuniary damages and an apology from the publishing company (the Centre being the third party in the national proceedings).
The origin of the picture
The publishing company contested the applicant’s claims and submitted that a certain Mr Sh. had taken the photograph of the applicant’s son (who was around 3 years old at the time) with the knowledge of the applicant. However, Mr Sh. had not informed the applicant of his intentions or the ways in which the photograph might be further used. In more detail, Mr P. who had been temporarily working for the publishing company and was commissioned to prepare the layout of the booklet,
“submitted to the court that in 2004 he had gone travelling together with his friend Sh., who was a photographer. Sh. had openly taken photographs of other tourists, including a photograph of the applicant’s son. After their return, Sh. had sent him electronic copies of those photographs and since that time they had been saved in his computer. In 2007 he (Mr P.) had been temporarily working for the publishing company <…>. The text and some photographs had been provided by the Centre. He searched in his computer for more photographs to be placed in the booklet and saw the picture of the applicant’s son, which seemed to fit the booklet well. He therefore placed it on the cover page. He did not know who the boy on the photograph was.” (para 19)
The consequences of the publication
The applicant claimed that her and her son’s honour, dignity and reputation had been damaged. 200 copies of the booklet had been distributed in libraries, hospitals, police departments of several towns and had provoked a significant negative attitude towards the applicant and her son on the part of her colleagues, neighbours and those close to her. In fact, the publication of the picture resulted in people calling the Centre and inquiring about the possibility to adopt the boy on the booklet cover page specifically (para 20). The applicant also claimed that
“people who knew her thought that she could no longer take care of her son because she had been deprived of her parental rights. She had had to explain to her neighbours, friends and colleagues that her family was doing well and that her son was living with her. Since the publication of the booklet, children in the kindergarten had started calling her son “little vagrant” and “poor orphan”.” (para 26)
Finally, the applicant resigned from her job as physical education teacher due to comments made by the parents of her pupils.
The legal claims of the applicant were based on article 152 (Protection of Honour, Dignity and Professional Reputation) and article 152.1 (Protection of the Citizen’s Image) of the Russian Civil Code. In June 2008 the District Court examined and dismissed the applicant’s claims arguing, in essence, that
“the honour, dignity and professional reputation of the plaintiff were not affected by the publication of the booklet <…> the booklet in itself had a positive scope <…> [it was] aimed at providing information, did not contain any defamatory details <…> Mrs Bogomolova did not place any restrictions or conditions on the use of those photographs, did not seek to find out what had happened to those photographs.”
Later that same year, the decision of the court of the first instance was found lawful and duly reasoned by the Regional Court.
Judgment of the ECtHR
The European Court of Human Rights (ECtHR) issued its judgment on 20 June 2017 and found a violation of article 8 ECHR. The ECtHR firstly stated that “the Court has no jurisdiction to consider applications directed against private individuals or businesses”, therefore that part of the applicant’s claim was rejected. Second, the applicant’s complaint regarding the domestic authorities’ failure to protect their right to respect for private and family life was not manifestly ill-founded and, thus, declared admissible.
The Court’s judgment on the merits of the case is rather concise. The ECtHR firstly elaborated on the notion of private life within the meaning of article 8 of the ECHR – “[it] is a broad concept which extends to a number [of] aspects relating to personal identity, such as a person’s name or image, and furthermore includes a person’s physical and psychological integrity”. The Court has also noted that a person’s reputation and honour form part of his or her personal identity and psychological integrity which fall within the scope of private life. However, in order for article 8 ECHR to come into play, the attack on personal reputation must attain a certain level of seriousness and must have been carried out in a manner causing prejudice to personal enjoyment of the right to respect for private life.
As also stressed in previous ECtHR case law (e.g. von Hannover v. Germany (no. 2)), “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, including the right to refuse publication thereof”. In this regard the ECtHR referred to its 2009 case of Reklos and Davourlis v. Greece which concerned two photographs of the face of a new-born baby. Firstly, the pictures were taken at a private clinic without parental consent. Secondly, the clinic refused to hand over the negatives of the pictures to the applicants. The ECtHR, therefore, found a breach of article 8 ECHR. The ECtHR has ruled on more cases concerning the protection of a child’s image, e. g. Kahn v. Germany and Kurier Zeitungsverlag und Druckerei GmbH (no. 2) v. Austria and Krone Verlag GmbH v. Austria.
Crucially, in the case of Bogomolova v. Russia the Court emphasised that
“while the essential object of article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private and family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of relations of individuals between themselves.”
When applying these considerations to the present case, the ECtHR found that “the effect of the publication of the photograph on the applicant’s reputation can be accepted to have attained a certain level of seriousness and prejudiced the applicant’s enjoyment of her right to respect for her private life.” The main issue of the case was whether a sufficient level of protection had been afforded to the applicant and her son by the national courts. The ECtHR stressed that they failed to examine whether the applicant had given her consent to the publication of the photograph. The ECtHR concluded that:
“the present case concerns the publication of a photograph which, at least by inference, can be seen to suggest that the applicant’s son was an orphan. Consequently, the impugned publication could have given its readers the false impression that the applicant’s son had no parents or that his parents had abandoned him. Any of these or other similar false impressions could prejudice the public perception of the family bond and relations between the applicant and her son.”
Therefore, a violation of article 8 ECHR was found unanimously. The applicant was awarded litigation costs and non-pecuniary damage. Both of the claimed sums were almost doubled by the ECtHR.
The judgment of Bogomolova v. Russia reconfirms the importance of the right to private and family life which encompasses the right to the protection of one’s image. The manifest violation of article 8 ECHR was analysed in a clear and concise way, asserting the ECtHR’s strong stance on the issue. Irrespective of where the minor’s picture in the present case was retrieved from (the internet, as initially claimed in paras 12 and 17, or a folder of a friend’s holiday pictures), the facts of the case demonstrate how even the photographs of children can be handled in a way that is incompatible with the ECHR.
Notably, the right to the protection of a child’s image is guaranteed under article 8 ECHR and is also recognised in national legislation of most countries. Moreover, photographs can be qualified as personal data under national and European law. The legal context of the European Union data protection law is very relevant in this case as the General Data Protection Regulation will become applicable in May 2018. Under current EU law personal data is defined as “any information relating to an identified or identifiable natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity”. Evidently, a child’s face should be considered personal data under EU law as it is a physical factor allowing for a direct identification of the person. Besides, specific requirements of data protection need to be complied with when such data is being processed, e. g. consent has to be obtained. The importance of the right to control the use of one’s image, including the right to refuse its publication, has been emphasised once more by the ECtHR (para 52). Moreover, the right to one’s image and control thereof is often violated online as sharing data is extremely easy in the online environment.
Evidently, photographs are still being published and further distributed without the proper consent. In the context of the case under analysis, it should be noted that quite a similar issue arose in Belgium in 2013. A Belgian newspaper published an article (in Dutch) reporting on the growing problem of children having no lunches at school due to poverty. It turned out that, in order to illustrate the article, the newspaper chose an archive image taken more than a year before as an illustration of a piece on a completely different topic. Neither the children in the picture, nor their parents were aware of the fact that the photograph would be reused in a different context.
The background and facts of the Bogomolova v. Russia case and the Belgian article illustration provoke the realisation that the general understanding and the willingness to protect private and family life, as well as personal data, both, on private and public sector levels, is still under development. Moreover, the protection of the right to one’s image and its control is particularly challenging in the online world.
Ingrida Milkaite is a doctoral student in the research group Law & Technology at Ghent University. She is working on the research project “A children’s rights perspective on privacy and data protection in the digital age: a critical and forward-looking analysis of the General Data Protection Regulation and its implementation with respect to children and youth” (Ghent University, Special Research Fund).
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Hello, has the court already faced cases with pictures posted on social media, such as Instagram for instance? If not, how do you think she should respond?