In Reklos and Davourlis v Greece (Strasbourg) [2009], the European Court of Human Rights held that taking photographs of a baby, without parental consent, amounts to a violation of its right to privacy under Article 8 of the European Convention on Human Rights (ECHR). The European Court stressed that Article 8 presupposed obtaining the consent of the person concerned when the picture was being taken and not just when it came to possible publication.

BACKGROUND

Immediately after Anastasios Reklos’ birth, he was placed in a unit to which only medical staff had access. Professional photographs of the baby were taken and his parents objected to this intrusion without their consent.

Following the clinic’s refusal to hand over the negatives, the parents brought before the Greek courts an action for damages that was dismissed. They appealed unsuccessfully against that decision and lodged an appeal, submitting that the courts rulings had infringed their son’s right “to dignity” and “to protection of private life”. The appeal was dismissed on the ground that it was too vague.

COMPLAINTS

Relying on Article 6(1) ECHR, the parents complained about the dismissal by the Greek courts of their action. They further complained of a breach of their child’s right to respect for his private life under Article 8.

EUROPEAN COURT’S DECISION

The European Court upheld the complaints. Declaring the parents’ appeal inadmissible on the sole ground that it had been too vague amounted to excessive formalism. This had prevented the parents from having their allegations examined by the Court of Cassation, in breach of the right of access to a court under Article 6 (1).

The European Court stressed that a person’s image revealed their unique characteristics and constituted one of the chief attributes of their personality. It added that protection of the right to control one’s image presupposed obtaining the consent of the person concerned when the picture was being taken and not just when it came to possible publication. The negatives also could have been used at a later date. As such, the Greek courts had not taken sufficient steps to guarantee Anastasios’s right to protection of his private life, in breach of Article 8.

COMMENT

One may wonder whether a picture of a child can ever be taken without obtaining parental consent. However, it may not have been considered that merely holding the negatives would compound a breach of privacy. It will be interesting to see how the UK courts deal with references to the “negatives” point as they tend to draw a distinction between the circumstances of a photograph being taken and the nature of its publication, the latter being much more likely to infringe.