Mar 23 2009
As, surely, everyone reading this knows, Google Street View was launched in Scotland last Thursday. Advertised as covering Edinburgh, Glasgow, Dundee and Aberdeen, it also covers large swathes of west-central and north-east Scotland. Pleasingly, Edinburgh was photographed on a warm summer day1, giving visitors the impression the citizenry are in the habit of walking around in T-shirts; but sadly much of the city centre was never photographed at all. What possessed the Google mappers to leave out the Mound, George Street, North Bridge, and St Andrews Square (I can appreciate Princes Street and the High Street may have been impassable), when they took the trouble to go down Inverleith Terrace Lane?
But it is carping to complain. This is a work of great art, and a great work of art.
Press suggestions that Street View ‘endangers privacy’, and is unlawful because ‘prior consent’ was not obtained, strike me as nonsense. These claims seem to be based on sound-bites from an organisation called Privacy International, who made the unsustainable claim that “it was an established legal principle that a person’s consent is required for a photograph that is used commercially“, and suggested they would be bringing some sort of test case on behalf of the people of Britain to have Google Street View declared illegal on the basis that individual consent should have been sought from everybody who appears: “There have been highly successful cases in the courts regarding celebrities who have not given consent for the commercial use of their images… we think there is enough case law for this to proceed.”
In fact there is no case law which supports such an argument, and nothing said in either the European or the UK courts can be interpreted as suggesting that any such principle exists. This is reminiscent of the urban legend, so widespread in local authorities and schools a few years ago, that it was somehow illegal for parents to photograph football matches or carol services; public photography has come to be seen, in the more authoritarian fringes of our ‘increasingly paranoid society, ‘ as intrinsically suspicious behaviour, to be reported to the police without further ado.
The starting point, certainly, is that publication of photographs of human beings may in principle engage Article 8 of the European Convention: “The concept of private life includes elements relating to a person’s right to their image and the publication of a photograph falls within the scope of private life“: Eerikäinen and Others v. Finland,  ECHR 255, 10 February 2009 (the same day, coincidentally, that the European Court of Justice rejected the arguments of Ireland and Slovakia that the retention of personal data required by Directive 2006/24 amounted to an extensive and unjustifiable interference in the right of individuals to privacy). But there is no authority, either in the European or the British courts, for the view that photography of this kind will be seen as unlawful. The courts have made clear distinctions between ordinary street scenes on the one hand, and intrusive or targeted photography, which this is not.
The leading European case is von Hannover v. Germany,  ECHR 294 (Princess Caroline’s case)2. The court did not hold, as it is sometimes said to have done, that public photography is prima facie unlawful. The complaint was not of the mere act of photography, but that she “was constantly hounded by paparazzi who followed her every daily movement” in what the Court described as “a climate of continual harassment“; far removed from this case. The Court held “the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest“. Clearly Google Street View makes such a contribution; it is a work of social documentary as much as it is a work of art. No other ECHR case so much as suggests that such photography might be considered a breach in the absence of serious intrusion, of which Peck v United Kingdom  ECHR 44 is a good example.
Nor does any Scottish or English case suggest that there is any merit in Privacy International’s complaint. The leading cases are Campbell v MGN  UKHL 22 (since taken to Strasbourg), and Murray v Big Pictures  EWCA Civ 446, again a case of targeting and intrusion in which there was no countervailing social value, and which the court distinguished from ‘street scenes’.
The disturbing aspect of Privacy International’s complaint is that it suggests that there is something wrong, in principle, with the taking of photographs in public without the informed consent of all who appear in them; an impossibility. Public photography is itself a right. Very few ‘human rights campaigners’, as Privacy International styles itself, would welcome it being effectively banned. As Bruce Schneier wrote, “prohibiting photography was something we used to ridicule about the USSR”.
Google Street View is not unlawful, nor should it be. Nothing is photographed that could not be seen and photographed by anyone. Yes, you can dimly see through some windows; indeed, you can see a rocking-horse in my own house. Yes, you can see people, and sometimes their faces aren’t blurred. You can see cars parked, sometimes where they shouldn’t be. So what? As the Information Commissioner pointed out, “there is an easy mechanism by which individuals can report an image that causes them concern to Google and request that it is removed”. To see this as a significant threat to privacy requires a pretty fair degree of insouciance as to the extent of genuine threats from the state. There are now well over four million CCTV cameras in Britain; an ‘utter fiasco‘ which has cost billions of pounds. The national ID card project will cost something between £10 billion to £20 billion more for ‘unwarranted and intrusive‘ identity tracking. Under the Data Retention (EC Directive) Regulations 2009, which come into force next month, every email or text message you send will be held for a year on the off-chance it might be of interest to the state. And so on. And so on. As the House of Lords Select Committee on the Constitution wrote last month in their important report Surveillance: Citizens and the State, “successive UK governments have gradually constructed one of the most extensive and technologically advanced surveillance systems in the world.” That matters a great deal more than Google Street View.
- Sometime between July and October last year; Impressionism in Scotland is on in the Royal Scottish Academy. [back]
- See also subsequent proceedings in the German courts as far as the Bundesverfassungsgericht, which observed “In weighing competing legal interests bearing in mind the assumption enshrined in Article 5.1 of the Basic Law in favour of the admissibility of press reports which are intended to contribute to the formation of public opinion… , particular importance is to be attached to the right of freedom of expression enshrined in Article 10.1 of the Convention wherever the press report makes a contribution to “information and ideas on all matters of public interest”. [back]
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