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  1. #41
    David Lyga's Avatar
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    Again, I DO, indeed, blame parents who are too afraid of not being revered as the child's 'friend'. (They often end up being reviled when the child 'matures'.)

    Discipline is not a dirty word. Responsible behavior starts young. Although I will state, without equivocation, that, today, parenting is not as unilateral as it once was: too many outside influences. - David Lyga

  2. #42
    Benoît99's Avatar
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    In Canada, some photography restrictions are enacted under provincial laws or municipal by-laws. In the case of Québec, generally speaking, commercial, editorial and artistic are the same thing. It doesn't matter if a photo is published in a newspaper or hung in a gallery and it doesn't matter whether or not the photographer uses the image for monetary profit.

    It is legal to photograph people who are in a public place without their consent. It is legal to publish their photo without obtaining their consent if the photo covers a newsworthy event. Otherwise,or if the subject was photographed in a private place, the subject's permission is required for any kind of public display.

    It is NOT legal to publish (in the media, a gallery display, a personal blog), without consent, the image of a recognizable person who is the main subject of the image unless the image was taken to record a newsworthy event.

    Example: You take a photo of a clown who is entertaining children in a public park. The clown is the obvious main subject of the photo but a group of children who are being amused is visible in the photo. You can publish or display (commercially, artistically or editorally) the group photo without the consent of the clown or the children (i. e., their parent). If you crop the photo so that only the clown is recognizable, no consent is required because he was performing publicly and the event is " newsworthy" and he wanted to be seen. Since the children are incidental to the photo, you CANNOT publish (or display in a gallery) without consent, a cropped photo that is essentially a portrait of one or several of them.

    A few years ago, the Supreme Court of Canada handed down an important decision in this area. A photographer was taking pictures of a public demonstration. He noticed a young women sitting in a nearby doorway. His portrait of the woman was later published in a magazine. She sued and won because she was not depicted as the main subject of a newsworthy event or even as a recognizable onlooker of that event but as a private individual present in or observable from a public place.

    http://canlii.ca/en/ca/scc/doc/1998/...canlii817.html

    In Québec, there is a right to privacy. The Supreme Court said, "The right to one’s image is an element of the right to privacy under s. 5 of the Quebec Charter of Human Rights and Freedoms. If the purpose of the right to privacy is to protect a sphere of individual autonomy, it must include the ability to control the use made of one’s image. There is an infringement of a person’s right to his or her image and, therefore, fault as soon as the image is published without consent and enables the person to be identified." However, the Court recognized an exception for photographs of "newsworthy events" that covers the principal subjects and the incidental subjects (if the images of the latter are in the context of the newsworthy event.

    There are NO exceptions for photos taken of people who are in a private place.

  3. #43
    Diapositivo's Avatar
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    Can we see the picture?

    The sentence is not clear to me.
    The sentence seems to be based on a prejudiced caused to a minor (17 years old at the time of the facts). It is not clear how relevant is the fact that the person portrayed is a minor of age.
    The sentence seems to be based, also, on the fact that the subject portrayed was easily contactable.
    Finally, there seem to be a "prejudice" arising from the publication. It seems to me that a "moral prejudice" was recognised here, which is possibly due to the nature of the image.

    The sentence reports the dissenting judge motivating in a quite different way from the majority of the jury, which means another jury might well decide in a different way.

    The "balancing" between right of image and freedom of expression seems to be demanded to the judge, the law doesn't make a "clear cut" case and each judge might decide differently I suppose.

    The entire sentence is not clear to me as the respondent (the publisher, who won in the first degree of judgement, which was appealed) seems to sustain the case that there was a prejudice.
    EDIT: well no. Aubry, the girl, won the first sentence. The publisher appealed. The respondent is Aubry.


    <<
    As for the causal connection between the publication of the photograph and the prejudice, there clearly is one.

    [...]
    Here, the dissemination of the respondent’s image constituted a violation of her privacy and of her right to her image. In the abstract, to appropriate another person’s image without his or her consent to include it in a publication constitutes a fault. However, in light of the first paragraph of s. 9.1 of the Quebec Charter, the respondent’s right to privacy must be interpreted and harmonized in a manner consistent with the appellants’ freedom of expression and the public’s right to information, which is guaranteed by s. 44 of the Quebec Charter. In matters involving the right to one’s image, this harmonizing role is played by the concept of the public interest. The content of this concept depends on the nature of the information conveyed by the image and on the situation of the parties involved. On the other hand, it must be balanced against the reasonable expectation of privacy of the person whose image is reproduced and, generally, against the severity of the infringement of the parties’ rights. The concept of public interest limited to the right to receive “socially useful information” is too narrow. In this case, the public interest does not justify the appellants’ fault. The photographer could easily have obtained the respondent’s consent, but did not do so. As for causality, it is not at issue. Regarding prejudice, the Quebec law of civil liability requires proof of prejudice resulting from the fault. The respondent’s simple statement that her classmates laughed at her does not in itself constitute sufficient evidence of prejudice, since it does not provide any information about how she felt. Nor is there any evidence that the respondent has become a “well-known figure” or that the instant proceedings and the media coverage they received have increased her notoriety.
    >>
    Last edited by Diapositivo; 02-21-2013 at 04:43 AM. Click to view previous post history.
    Fabrizio Ruggeri fine art photography site: http://fabrizio-ruggeri.artistwebsites.com
    Stock images at Imagebroker: http://www.imagebroker.com/#/search/ib_fbr

  4. #44
    MattKing's Avatar
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    The legal decision is a decision of the Supreme Court of Canada. It is the result of a trial decision and then two levels of Appellate review.

    At appeal, there are no witnesses or new evidence - just arguments about principles and law and how they interact with the facts of the case.

    The plaintiff sued for $10,000.00 plus court costs. She won $2,000.00 plus court costs. The court costs are determined by a formula, and would amount to tens of thousands or more. They would, however amount to less than the normal amount of her associated legal bills.

    Very, very few cases go this far. With some exceptions, there is no right of appeal to the Supreme Court of Canada - they generally only accept appeals for hearing if they are considered to be of lasting importance, and the issue involved isn't already the subject of well settled law.

    To understand the case, you need to understand that Quebec's law in matters of this nature is originally based on the Civil Code. It has been modified by both statute and case law. Quebec is the only jurisdiction in Canada that has law originating from the Civil Code.

    You also need to know that the "rights" which were claimed to be infringed were rights created or codified by a Quebec statute. That statute is only in force in Quebec - not the rest of Canada.

    There were seven justices sitting on the panel. The court only has nine justices (the most senior and important judges in our country), and it is quite rare to have a seven justice panel decide a case. Three justices is more common. Clearly the court considered the issues involved to be important, because that is one of the criteria used when determining the panel.

    Five of the justices agreed in the result.

    Two of the justices disagreed (dissented), but for different reasons.

    The part of the decision that forms the "law" on this matter is the majority decision. The dissent does not form the law, but dissenting opinions are not necessarily irrelevant. In future circumstances, with slightly different facts involved, the analysis in a dissenting opinion may help advance the law when those different facts are considered.

    There are no juries involved in this case. In Canada we do use juries, but not nearly as much as our US neighbours. It looks to me that the original trial was before a judge alone.

    The majority decision is a reasoned analysis of the law, and a fairly clear determination of it. It does seem clear that it isn't the photography that causes the problem, but rather the publishing of it.

    It doesn't apply specifically in the rest of Canada, but the rationale might help inform a decision on similar cases arising in the other provinces - provided that there be found a similar right to privacy in those provinces.
    Matt

    “Photography is a complex and fluid medium, and its many factors are not applied in simple sequence. Rather, the process may be likened to the art of the juggler in keeping many balls in the air at one time!”

    Ansel Adams, from the introduction to The Negative - The New Ansel Adams Photography Series / Book 2

  5. #45
    Diapositivo's Avatar
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    What isn't clear to me is whether the trial was decided based on the "prejudice" suffered by the plaintiff, or if unauthorized publication in itself is deemed to constitute a prejudice.

    Considering that the case had three degrees of judgement, I would infer that, before this judgement, the question was opened (I mean, the judge had to balance the rights of the various parties involved).

    From what you write I infer that in Québec the stare decisis principle applies, and a decided case bounds the next judge if the case is "the same".

    The question arising is: what new principle has this sentence introduced, if any, in the juridical body of norms?

    If the new principle is that any unauthorized publication, for the mere fact of being unauthorized, is a violation of the right of image, then this is a sentence of great importance for the publishing industry of Québec.

    If the new principle is that an unauthorized publication is a violation of the right of image if the portrayed person suffers a prejudice, and if the portrayed person could have been contacted by the publisher but was not, and if the image did not fulfil any special purpose of public interest, then I think the sentence is of little practical importance, because any new judgement will have to deal, on a case by case basis, with the assessment of the eventual prejudice and the possibility of contact of the portrayed person on the one hand, and the relevancy for the intended purpose and the basic freedom of expression on the other hand. The "balancing" will have to be made in each case.
    Fabrizio Ruggeri fine art photography site: http://fabrizio-ruggeri.artistwebsites.com
    Stock images at Imagebroker: http://www.imagebroker.com/#/search/ib_fbr

  6. #46

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    If you are posting the images to try and return them then that is a noble cause. If you are posting it just to say "hey look at these old photos I found" then I would ask what would be the point? I personally would pitch them and keep the rolls.
    Technological society has succeeded in multiplying the opportunities for pleasure, but it has great difficulty in generating joy. Pope Paul VI

    So, I think the "greats" were true to their visions, once their visions no longer sucked. Ralph Barker 12/2004

  7. #47
    MattKing's Avatar
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    Quote Originally Posted by Diapositivo View Post
    What isn't clear to me is whether the trial was decided based on the "prejudice" suffered by the plaintiff, or if unauthorized publication in itself is deemed to constitute a prejudice.

    Considering that the case had three degrees of judgement, I would infer that, before this judgement, the question was opened (I mean, the judge had to balance the rights of the various parties involved).

    From what you write I infer that in Québec the stare decisis principle applies, and a decided case bounds the next judge if the case is "the same".

    The question arising is: what new principle has this sentence introduced, if any, in the juridical body of norms?

    If the new principle is that any unauthorized publication, for the mere fact of being unauthorized, is a violation of the right of image, then this is a sentence of great importance for the publishing industry of Québec.

    If the new principle is that an unauthorized publication is a violation of the right of image if the portrayed person suffers a prejudice, and if the portrayed person could have been contacted by the publisher but was not, and if the image did not fulfil any special purpose of public interest, then I think the sentence is of little practical importance, because any new judgement will have to deal, on a case by case basis, with the assessment of the eventual prejudice and the possibility of contact of the portrayed person on the one hand, and the relevancy for the intended purpose and the basic freedom of expression on the other hand. The "balancing" will have to be made in each case.
    The case is a private law case - the plaintiff was seeking compensation for damages suffered as a result of a breach of her legal rights. Those rights happen to be rights that are either created by or confirmed by a statute.

    To give a remedy, the court had to find that compensable damages were incurred by the plaintiff. Probably most importantly, the court found that public embarrassment is sufficient to found a claim for compensable damages. And the fact that the plaintiff was singled out as the subject of a photo (I believe on the cover) in the magazine is crucial to the finding, because it moved the publication of the photo out of the public interest exceptions to the "right of privacy" rules.

    Yes, Quebec uses common law approaches to deciding civil law issues - the stare decisis principle applies.

    And the problem for commercial publications is that they have no way of knowing whether someone in a photo will be prejudiced by publication of their photo - for some there might be considerable prejudice involved.
    Matt

    “Photography is a complex and fluid medium, and its many factors are not applied in simple sequence. Rather, the process may be likened to the art of the juggler in keeping many balls in the air at one time!”

    Ansel Adams, from the introduction to The Negative - The New Ansel Adams Photography Series / Book 2

  8. #48
    Diapositivo's Avatar
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    Quote Originally Posted by MattKing View Post
    Probably most importantly, the court found that public embarrassment is sufficient to found a claim for compensable damages. And the fact that the plaintiff was singled out as the subject of a photo (I believe on the cover) in the magazine is crucial to the finding, because it moved the publication of the photo out of the public interest exceptions to the "right of privacy" rules.
    (emphasis mine)

    What I mean is: if the picture is not embarrassing (or not judged to be embarrassing) than there is no liability, is it? So the matter is basically a matter of defamation (one must prove some damage to his own reputation, respectability etc.) than of Right-of-image (which would apply "automatically", regardless of the embarrassment or of any valuation by the judge).

    This makes a huge difference for the publishers, as they know that they can publish pictures of people taken in public provided there is no embarrassment inflicted to the portrayed person.
    Fabrizio Ruggeri fine art photography site: http://fabrizio-ruggeri.artistwebsites.com
    Stock images at Imagebroker: http://www.imagebroker.com/#/search/ib_fbr

  9. #49
    Benoît99's Avatar
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    Diapositivo,

    If you read French, go to the following page, written by a photo-journalist and which gives a rather detailed summary of the principles of law that apply to photographers in Québec with respect to the privacy rights of people who are photographed.
    http://www.francisvachon.com/blog/le...age-au-quebec/

    Ciao.

  10. #50
    MattKing's Avatar
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    Thanks Benoît99 for posting the link. As usual, I wish I could read and understand much more French than I do.
    Matt

    “Photography is a complex and fluid medium, and its many factors are not applied in simple sequence. Rather, the process may be likened to the art of the juggler in keeping many balls in the air at one time!”

    Ansel Adams, from the introduction to The Negative - The New Ansel Adams Photography Series / Book 2

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