Last week this writer and some friends got together at the home of one of the group to watch Manchester United's exit from the Champion's League. In order to attend the get together, one of us cancelled a prior engagement with his wife citing a "work emergency." He would have gotten away with it but for another of our group's decision to post his mobile phone photographs of the proceedings to his Facebook account. To cut a long story short, one friend is now in the proverbial "dog house" and the other will be picking up the group's bar tab for the next couple of weeks for breach of the "guy code of conduct".

Although on the face of it only a funny story, the scenario presents an interesting legal question - does one have the legal right to object to publication of revealing photographs taken of him/her in a private setting? This question is of increasing relevance in a context where advances in mobile phone technology have now transformed almost every one of us into a digital photographer. Considering further that Facebook has approximately a billion active users who will upload two million photos before you turn the page of this publication and 100 billion photos before the year is out, the question becomes even more interesting.

The answer to this question in Jamaica will rely to some extent on the interpretation of each individual's fundamental right to "respect for his private and family life" as prescribed by Jamaica's constitution. A very recent case in England ventilated the issue. In that case the complainant attended a party at a family member's home in 2010. At the party another guest took a series of photos some of which showed the complainant engaging in what he later described as "rather silly, schoolboy-like behavior". The photos were posted to Facebook where they became available to the photographer's 1,500 or so friends. The photos remained unavailable to the general public for months until the photographer's Facebook privacy settings were inadvertently relaxed. Two years later, the claimant married a famous actress and immediately became the subject of aggressive tabloid media interest. The photos of the complainant were discovered by a well-known newspaper, which took steps to publish them. The claimant asked the court to restrain the publication.

The claimant argued primarily that the photos were taken at a private party on private premises and showed behavior that a reasonable person would consider offensive to have disclosed to the general public in a national newspaper. The newspaper argued that the photos had become public when posted on Facebook and that the photos were taken with the complainant's open consent at the time.

The Court decided that the photos were "private", for a number of reasons including that they: 1) showed the complainant in the company of family and friends at a private party on private premises and behaving in a manner in which he would be entirely unlikely to behave in public 2) the Complainant had no idea that the photographs would be posted to Facebook or shared beyond a close group of mutual friends, and 3) the complainant's willingness to be photographed was not consent for broad publication.

Contrary to traditional approaches to the issue of privacy, the Court decided that although the photos had been available to the general public for some time on Facebook and in that sense were in the public domain, the Court could still act to protect what privacy remained in the photos. The court found that it had grounds to restrain the copying of the photos, or other communication of their contents on the basis that to do so would be an inadmissible violation of the claimant's right to private and family life under Article 8 of the European Convention on Human Rights (ECHR). As Jamaica's constitution affords each of us a similar right, it will be interesting to see how our courts will approach such a matter. Finally, and in case the reader is wandering, this writer is neither of the two friends mentioned in the opening example!

Randolph Cheeks is the Principal of the boutique business law firm Cheeks & Co. He may contacted via email to clientsupport@cheeks-co.com