CAMERAS on houses in residential communities, in and around commercial buildings, on traffic lights, or otherwise placed in public places for surveillance and security purposes, record our “to and fro” on a daily basis.

Every now and then, we may be captured incidentally in the background of a selfie or an image in which we were not intended to be the main subject. There are also instances when a person who we may or may not know intentionally records our image for recreational purposes, or sometimes with ill will, to capture an awkward or embarrassing moment, which could end up on social media. Is it that once we are in public, we have no right to privacy? The answer is “No.”

In Jamaican cases such as the 1994 case between the Robert Marley Foundation and Dino Michelle Limited (regarding the unauthorised use of Bob Marley’s image on a T-shirt), and the 2004 case between Georgia Messam and Morris and Williams (regarding the inclusion of Messam’s image in a publication produced for commercial distribution), the Supreme Court acknowledged the tort of misappropriation of personality. This tort, in addition to the tort of passing off, may arise where a person’s image is exploited commercially without his or her consent. Nonetheless, a person’s right to privacy in relation to the unauthorised use of an image can be breached even where there is no commercial exploitation involved.

The Charter of Fundamental Rights and Freedoms in the Constitution of Jamaica recognises the right of everyone to respect for and protection of private and family life. The Jamaican case of Julian Robinson v the Attorney General of Jamaica [2019] JMFC Full 04 cites the reasoning from an earlier Indian case concerning freedom and privacy which states that every individual should have a right to be able to exercise control over his or her own life and image, as portrayed to the world, and to control commercial use of his or her identity. Our ability to exercise control over the publication of our image is part of our right to privacy, which can be enforced horizontally — that is between citizen and citizen — and not just against the State. Notwithstanding, there are instances in which rights conflict. We each have the right to privacy, and we also have a right to freedom of expression. When one person’s expression violates another person’s privacy we must consider whether the violation is demonstrably justified in a free and democratic society, giving regard to factors such as proportionality.

Cases from other jurisdictions such as the United Kingdom may be considered persuasive in exploring the breach of privacy issue. In Campbell v MNG [2004] UKHL 22, the House of Lords articulated that the protection of private life concerns whether the person in question had a reasonable expectation of privacy, which is an objective test based on what a reasonable person would expect in the same position faced with the same publicity. The court acknowledged that the famous and the not so famous who go out in public must accept that they may be photographed without their consent, just as they may be observed without their consent. The fact that you do not like an image of yourself that was taken in public without your consent does not automatically mean the person who took it is obligated by law to delete it. People should be very careful, though, about capturing a person’s image — particularly where the image is humiliating, or the person expresses that they do not consent to the taking of the image, or asks that the image be deleted.

In the Campbell case, the majority ruled in favour of a famous international fashion model who was photographed in the street leaving Narcotics Anonymous, a photo which was evidence that she was a drug addict, contrary to what she expressed to the public. The majority found that she had a reasonable expectation of privacy, which in the circumstances outweighed the right to freedom of expression. Note too that there is an important distinction between the mere taking of a photograph or video and the publication of same. Where a film of a man in an embarrassing moment that was captured by CCTV camera was broadcast several times on television, the exposure was deemed by the UK court to have surpassed what the subject could possibly have foreseen from his walk on the day in question. Having a CCTV camera that captures passers-by can be acceptable but that does not mean the owner of the camera is allowed to publish any and every recording that it captures.

The question of whether there is a reasonable expectation of privacy is a broad one which takes account of all the circumstances of the case, including:

i. the attributes of the claimant;
ii. the nature of the activity in which the claimant is engaged;
iii. the place at which it was happening (including whether the image was taken in a private place accessible by the public that has its own rules about photography);
iv. the nature and purpose of the intrusion;
v. the absence of consent and whether it was unknown or could be inferred;
vi. the effect on the claimant;
vii. whether the recording concerns a matter of public interest; and
viii. the circumstances in which and the purposes for which the image came into the hands of the publisher.

It is easy for us in this age to take pictures and videos and share them online or elsewhere but, to avoid liability, we have to be careful about how we capture and use a person’s image without their consent. Acting in good faith and with respect for others is generally helpful in that regard.

Kimberley Brown is an associate at Myers, Fletcher and Gordon and a member of the firm’s commercial department. She may be contacted at: kimberley.brown@mfg.com.jm or through the firm’s website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.