The publishing of photographs and the restrictions of the ECHR based on the principle of privacy
Bogomolova v. Russia 20-06-2017 (no. 13812/09)
Publication of a photo. Even if consent has been given to taking an photograph with unrestricted use of it, publishing it without the consent of the person constitutes a violation of his privacy. This case concerns the publication of a photograph of the applicant’s son who gave the impression that she had left him and that this had affected her reputation not only as a mother but also as a teacher. Infringement of the provision of Article 8 of the ECHR.
The applicant, Tatyana Bogomolova, is a Russian national born who was born in 1978. Together with her son, born in 2001, Ms Bogomolova lives in Berezniki in the Perm region of Russia.
In November 2007, a photograph of her son was published on the cover of a booklet prepared by the Municipal Centre for Psychological, Medical and Social Services. 200 copies of the booklet, entitled “Children need a family”, were circulated to inform the community about the role of the Centre in both protecting orphans and assisting families hoping to adopt.
Ms Bogomolova brought civil proceedings to complain that she, together with her son, had suffered damage to her honour, dignity and reputation. She claimed that the use of the photograph had given the impression that she had abandoned her son and that this had affected her reputation not only as a mother, but also as a schoolteacher. Furthermore, her son had become a victim of mockery amongst his peers following his appearance on the booklet. The courts dismissed her claims however, finding that the photograph had been taken with her authorisation and that she had not placed any restrictions on its use.
THE DECISION OF THE COURT
Article 8 (right to respect for private and family life)
The Court recalled that a person’s image constituted one of the chief attributes of his or her personality and that the right to protect this image was thus an essential component of personal development. As such, Article 8 presupposed the right to control the use of one’s image, including the right to refuse its publication.
In the present case the Court accepted that the publication of the photograph came within the scope of Ms Bogomolova’s and her son’s “private life” within the meaning of Article 8.
The Court observed that, in taking their decision to dismiss Ms Bogomolova’s claims, the domestic courts had established that the photograph had been taken with her authorisation and that she had not placed any restrictions or conditions on its use. However, they had failed to examine whether she had given her consent to the publication of the photograph.
Moreover, the context of the photograph could have given the false impression that the child pictured had been abandoned by his parents. This or any other inference which could be drawn from the photo could have prejudiced public perception of the familial bond that Ms Bogomolova shared with her son.
THE DECISION OF THE COURT
The Court therefore held that there had been a violation of Article 8 of the Convention.
Article 41 (just satisfaction)
The Court held that Russia was to pay Ms Bogomolova 130 euros (EUR) in respect of pecuniary damage, EUR 7,500 in respect of non-pecuniary damage and EUR 100 for costs and expenses.