Archived posting to the Leica Users Group, 1998/05/02[Author Prev] [Author Next] [Thread Prev] [Thread Next] [Author Index] [Topic Index] [Home] [Search]
I really hesitate to raise this again, but I was found the text of the actual decsion by the Court. I simply offer this as information - not to start the discussion anew. Tom Shea This is from the decision, written by Madam Justice Clarie L'Heureux-Dube and Mr. Justice Michel Bastarache: BOTH sides accept that the photograph was taken in a public place and published without the respondent's consent. According to the evidence, it was the appellant Gilbert Duclos who took the respondent's photograph. The photograph was, published by the appellant Les Editions Vice-Versa inc. in the June  issue of Vice~Versa, a magazine dedicated to the arts, and 722 copies of the issue in question were sold .... Analysis: The public's right to information, supported by freedom of expression, places limits on the right to respect for one's private life in certain circumstances. This is because the expectation of privacy is reduced in certain cases. A person's right to respect for his or her private life may even be limited by the public's interest in knowing about certain traits of his or her personality. In short, the public's interest in being informed is a concept that can be applied to determine whether impugned conduct oversteps the bounds of what is permitted.. It is generally recognized that certain aspects of the private life of a person who is engaged in a public activity or has acquired a certain notoriety can become matters of public interest. This is true, in particular, of artists and politicians, but also, more generally, of all those whose professional success depends on public opinion. There are also cases 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. 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 think of a photograph of a crowd at a sporting event or a demonstration. Another situation where the public interest prevails is one where a person appears in an incidental manner in a photograph of a public place. An image taken in a public place can then be regarded as an anonymous element of the scenery, even if it is technically possible to identify individuals in the photograph. In such a case, since the unforeseen observer's attention will normally be directed elsewhere, the person "snapped without warning" cannot complain. The same is true of a person in a group photographed in a public place. Such a person cannot object to the publication of the photograph if he or she is not its principal subject. On the other band, the public nature of the place where a photograph was taken is irrelevant if the place was simply used as background for one or more persons who constitute the true subject of the photograph. In the context of freedom of expression, which is at the heart of the public's interest in being informed, the person's express or tacit consent to publication of his or her image must, therefore, be taken into account. ... [in the case of the photo of Ms. Aubry], the artistic expression of the photograph, which was alleged to have served to illustrate contemporary urban life, cannot justify the infringement of the right to privacy it entails. It has not been shown that the public's interest in seeing this photograph is predominant. The argument that the public has an interest in seeing any work of art cannot be accepted, especially because an artist's right to publish his or her work, no more than other forms of freedom of expression, is not absolute.... None of the exceptions mentioned earlier based on the public's right to information is applicable here. Accordingly, there appears to be no justification for giving precedence to the appellants [the photographer and the magazine] other than their submission that it would be very difficult in practice for a photographer to obtain the consent of all those he or she photographs in public places before publishing their photographs. To accept such an exception would, in fact, amount to accepting that 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 that of others.