The Right to Freedom of Expression: Trashier and Fatter than Ever
A surprising decision of the Court of Appeal (CoA) in Amsterdam gives reason to be cautious for photographers during public events.
Publisher Bas published a book titled Platter en dikker (‘Trashier and fatter’), a ‘confronting’ book about greed, rudeness, aggression, consumerism and exhibitionism in Dutch society. The book contains ‘disturbing’ pictures of overweight people. On one of the pictures, titled ‘Harley Davidson-day in Rotterdam’, claimant ‘X’ is portrayed leaning against a motorbike with a bare chest and arms covered with tattoos. X, who did not provide his consent to the publication of the picture, decided to bring the publisher to court. He requested the court to order the publisher to cease and desist the distribution of the book. X argued, in first instance and in appeal, that the book has a negative tendency with which he does not want to be associated. X continued that he suffers mental and physical damages due to the publication of the book, in which he is being publicly defamed and ridiculed.
In cases concerning portrait rights the question is whether the portrayed person has a reasonable interest to object to the publication of his portrait. The breach of the right to protection of privacy, honour and reputation (article 8 of the European Convention on Human Rights) constitutes such reasonable interest. Whether the protection of privacy, honour and reputation is at stake depends on the nature and degree of intimacy in which the portrayed person is depicted. Also relevant are the character of the picture and the context of the publication. The reasonable interest of the portrayed person should be weighed against the interest of the opposing party to publish the picture, i.e. the right to freedom of expression (article 10 ECHR).
In this case it may very well be argued that X has a reasonable interest to object to the publication of his picture in the book ‘Trashier and fatter’. In my opinion the picture is placed in a context that is negative, condemning and disapproving to such a degree that X’s right to protection of his privacy, honour and reputation genuinely is at stake here. Therefore X’s interest to object to the publication should prevail over the publisher’s right to freedom of expression.
However, the Court of Appeal ruled differently. According to the court, X had visited a public event and could therefore reasonably expect someone to take his picture. The court considers that the publication is ‘not positive for X‘. Nevertheless, it ruled that X’s privacy, honour and reputation have not been affected unlawfully. X’s name has not been mentioned and there is no link between X and the texts, and X ‘clearly’ has been photographed in a manner he wants to be seen in. The court concluded that the right to freedom of expression should prevail in this case.
Bearing this decision in mind, it is important to stay alert whenever you find yourself at a public event. Imagine being photographed at a festival with a beer in your hand, happily posing before the camera with your thumb up. A few months later you discover that your picture is published in a brochure on alcohol abuse among students. Legally there may not be much you can do to prevent or discontinue the publication.