Archived posting to the Leica Users Group, 1998/05/02

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Subject: Re: [Leica] Off Topic - Quebec Decision
From: TEAShea <>
Date: Sat, 2 May 1998 22:07:04 EDT

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 [1988] 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

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.