November 26, 2003
The end of photoblogging?

My friend Hvard's comment on a previous post of mine pointed me to a fairly interesting and recent judgement in the European Court of Justice regarding taking photos in public:

The court rules for the first time on the scope of the data protection directive and freedom of movement for such data on the Internet

Referring to various persons on an internet page and identifying them either by name or by other means constitutes processing of personal data by automatic means within the meaning of Community law

[full text of ruling]

This effectively, as far as I can see, blocks photoblogging and mobile phone blogging (of photos of people taken in Europe or of any Europeans(?)) without a model release form. End of story. Sad but true. It actually also impacts to a great extent about what you can write about non-relatives in your blog. Definitely worth reading the press release!

Anyone else read it differently?

For debate and reference, here is some more random linkeage on public photography around the world:

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Comments

Can't really see how you reach such a conclusion. The key is "...and identifying them" in your quote above. Thus, as long as you don't enumerate the names of all the people in your picture or identify them "...by other means," you should be pretty OK.

Posted by: Tor Hovland on November 26, 2003 10:02 PM

Tor, thanks for your comment!

I'm thinking "identify" as in publishing photos of their faces, even unnamed? This woman got a fine for just writing the names of colleagues with a short humorous description plus mentioning that one of her colleagues had a medical problem.

Even further than photoblogging, even if anonymous photos are allowed (i.e. publishing street photography without naming the subjects) - you can just about imagine evey weblog, online diary and personal homepage listing friends or mentioning what you've been up to being outlawed...?

Posted by: Anders on November 26, 2003 10:39 PM

Well, if the photo is the "identify" part, then you are no longer "referring." The way I see it, you have to do two things to get into trouble, referring to somebody and identifying them. You have to couple a name (or other type of identification) to some kind of statement about that person. Publishing the medical history of a named person would qualify. Displaying a photo of anonymous people without discussing those individuals would not.

Now it might sound as if I support the court judgement, which I don't necessarily. If it forbids me from mentioning who I met during a political seminar, I don't. If it forbids me from discussing somebody's medical history, there might be some value to it, although it's still a tough call.

Posted by: Tor Hovland on November 27, 2003 12:01 AM

Tor, good, valid point.

Thanks for stopping by - always fun to get comments from people I know (I'm assuming we're ex-colleagues, but this new ruling might forbid me to give more references ;-)

Posted by: Anders on November 27, 2003 12:22 AM

While the ruling does say that referring to people on a web page and identifying them does come under the data protection directive, it also says that the Internet shouldn't count as transmitting to a third country.

The last part of the press release however probably means that this ruling will not carry much weight: "The provisions of the directive do not in themselves entail a restriction contrary to the principle of freedom of expression or other fundamental rights. It is for the national authorities and courts responsible for applying the national legislation implementing the directive to ensure a fair balance between the rights and interests in question, including those fundamental rights.
"

To me this means that national authorities are responsible for determining the balance between the their implementation of the data protection directive with regards to personal web pages and the fundamental right to freedom of expression. The result would be that the data protection directive implications will vary from country to country, as well as leaving open a possible appeal on the basis of the fundamental right to expression (which surely covers photos!)?

So that's as clear as mud then :-)

Posted by: Colin Stewart on November 27, 2003 06:25 AM

Now I'm obviously not a lawyer, but as I read the ruling it sounds as though it's fairly significant that Lundqvist created a "database" of personal information: a list of names, facts about them, it was organised, it wasn't just a blog post with chance references to people.

They don't mention photos at all, do they? Though you may well be right.

Posted by: Jill on November 27, 2003 08:58 PM

Hm. Do you see _real juridicial problems here? I don't think they are so.

Posted by: Homeless Guy on February 27, 2004 08:55 PM

Black and white street photography...

Posted by: Full Frame Images on June 30, 2004 05:16 AM
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