Full case report

Reklos and Davourlis v Greece

Reference Application no. 1234/05
Court European Court of Human Rights

Judge Vajic J, President, Rozakis, Kovler, Steiner, Spielmann, Jebens and Nicolaou JJ

Date of Judgment 15 Jan 2009


Summary

European Convention on Human Rights – Article 8 – Right to respect for private and family life –Photography – Consent – New-born baby


Facts

A child was born to Greek nationals in March 1997 in a private clinic. Immediately after birth, the baby was placed in a sterile unit to which only medical staff had access. As part of a photography service offered to clients, photographs of the new-born baby, viewed face on, were taken by a professional photographer. The parents objected to this intrusion into the sterile environment without their prior consent. Following the clinic’s refusal to hand over the negatives of the photographs to them, the applicants brought an action for damages before the domestic court, which dismissed the action as unfounded.

The child’s parents lodged an appeal on points of law, submitting that the court rulings had infringed the right “to dignity” and “to protection of private life”, and stressing the potential dangers for disabled children. The appeal on points of law was dismissed on the ground of being too vague.


Issue

Whether the state had taken sufficient steps to guarantee the child’s Article 8 right to protection of his private life.


Held

The Court reiterated that the concept of private life was a broad one, encompassing the right to identity. It stressed that a person’s image revealed his or her unique characteristics and constituted one of the chief attributes of his or her personality. In the present circumstances, effective 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 consent of the child’s parents had not been sought at any point, not even with regard to the keeping of the negatives, to which they objected. The negatives could have been used at a later date against the wishes of those concerned.

The Court concluded that the Greek courts had not taken sufficient steps to guarantee the child’s right to protection of his private life, in breach of Article 8.


Comment

This is an example of the unusual circumstances in which the mere taking of a photograph, without publication, will constitute a violation of Article 8, although the court did take the possibility of future (non-consensual) publication into account.


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