Una Kelly | Online Features Editor
It’s a feeling familiar to many college students. You had a bit too much to drink. Combined with your youthful boisterousness and exuberance it created a dangerous cocktail. You displayed dance moves you didn’t think your body was capable of. Got a little too friendly with someone. Threw up in your brand new handbag, or worse, your friend’s. You know, the usual.
Whatever the antics, it is likely that you would rather forget that they happened. Thankfully, they took place in a dark and dingy nightclub and your friends are all sound so there will be strictly no uploading of photographs of you caught in a compromising situation, please.
Unfortunately, this can no longer be relied on to be the case. ‘Embarrassing Nightclub Photos’, apparently originating in Australia in July of this year, is a website, Facebook page and tumblr page which has almost 1.5 million ‘likes’ on Facebook. People are encouraged to send in their photos in which they have captured the most ridiculous, hilarious, or crude that they have happened upon in nightclubs all over the world. What is also worrying is that many photos are simply of people, often female, doing nothing much out of the ordinary, but who are deemed to be physically repugnant by commentators, and then savagely critiqued and ridiculed in view of hundreds of thousands of people online.
‘Embarrassing Irish Nightlife’ appeared soon after. With Ireland being such a small country, the locations and therefore the people in the photo are much easier to identify, with some uploaders posting the name of the venue in which it was taken, or even specific events at specific Irish colleges. The website irishcentral.com reported that in response to complaints the administrators would take down explicit photos of people who did not want them to be posted. However, the administrators also said, “We have not breached any Facebook regulations otherwise we would have been shut down. Facebook is a public forum. If you don’t want people to see your boozy nights out, maybe don’t post them on Facebook…?”
An obvious point, and one that seems to miss that of the complainants. A photograph, once on the Internet, is infinitely reproducible. We select what we want to be tagged in on Facebook, navigate privacy settings, change our profile names to evade detection by curious potential employers. So what is the situation when we find ourselves identified in an unflattering image that was certainly not posted by us or our friends, but rather by any person who just happened to catch you when you were not at your best? Is this a blatant invasion of privacy, or can we expect any privacy rights when we are out in public?
The legal situation here, as in many other areas, is not exactly crystal clear and is still developing. The Irish Constitution grants us an implied right to privacy, while Article 8.1 of the European Convention on Human Rights guarantees that “Everyone has the right to respect for his private and family life, his home and his correspondence.” Irish case law suggests that photos taken in a public place may not be covered by our constitutional right to privacy. In Hickey v Sunday Newspapers Ltd in 2010, it was held that photos taken outside a building on a street and published in a newspaper did not breach privacy rights as the street was a public place to which this right did not extend, there could be no reasonable expectation of privacy here. However rulings from the European Court of Human Rights held that Article 8 of the convention would cover a person if they complained their right to privacy had been breached as a result of a situation such as a photo taken in a nightclub.
It most also be considered that recent cases from the UK have suggested that when one ‘courts publicity’ this could weaken an expectation to privacy in a public place. If a person regularly posts photos of themselves on the internet, could this be equated to courting publicity? “This is more complicated,” says Dr Ailbhe O’Neill, lecturer in Media Law in Trinity Law School. “There have been some decisions of the English courts suggesting that courting publicity may weaken privacy rights – and some suggestion of this in the Irish case law also. Those cases relate, however, to persons with a degree of celebrity rather than individuals whose only action has been previous posting on Facebook. Again, Article 8 of the Convention seems likely to cover individuals in this situation.”
It most also be considered that recent cases from the UK have suggested that when one ‘courts publicity’ this could weaken an expectation to privacy in a public place
A growing issue in recent years has been whether these days, with the ubiquity of camera phones, internet and Facebook, we can have any reasonable expectation to privacy in public. In light of changing times, should the law develop to strengthen our privacy protection in public? “Article 8 of the ECHR already covers privacy in public places because the European Court of Human Rights has recognised that there is a difference between doing something in public and having recorded images of it disseminated to a wider audience,” says Dr O’Neill. “The position under the Irish Constitution is less clear. It is interesting that at a time where the cultural trend – particularly among young people – seems to be an increasing lack of concern about privacy, the law is actually evolving to protect privacy and developing remedies for persons whose privacy is violated.”
Presently, if you wake up some day to find that a photo of you caught in a compromising situation has been shared all over the internet, the options seem to be either deal with the embarrassment, become involved in protracted legal wranglings, moderate behaviour in public in the first place or just hope that the administrators of such pages will show sympathy and discretion. The first three do not sound like appealing options, while the latter is unlikely. These photos can seem funny when it’s not happening to you, but the reality is that someday it could very well be you or a close friend in the photo. In this case, it will be quite a bit harder to forget.
