Moosavian, R (2018) Stealing 'Souls'? Article 8 & Photographic Intrusion. Northern Ireland Legal Quarterly, 69 (4). pp. 531-558. ISSN 0029-3105
Abstract
In Article 8 ECHR privacy right jurisprudence, photographs are deemed distinct forms of information that are particularly intrusive nature. This article is concerned with explaining why this is so. Part 1 examines the notion of ‘intrusion’ itself. It argues that ‘intrusion’ functions as a legal metaphor and plays an important role in constructing a binary between an outer self presented to the world and a ‘spiritual’, emotional interior that privacy purports to protect from transgression. Part 2 argues that that this ‘spiritual intrusion’ metaphor is influential in the continental personality right that informs the ECtHR’s approach to Art 8 protection for photographed individuals. This leads to potentially stronger protection for image, including a basic Art 8 right to control one’s image. Yet there is a divergence of approach in the English courts, where personality theory has limited influence; here there is traditional scepticism towards an image right and photographic capture is largely neglected. Part 3 argues that photography becomes a relevant factor at publication stage, where courts agree that the distinctive features of the medium may cause or exacerbate intrusion. This is because photography creates a permanent, infinitely replicable ‘truthful’ record of the individual’s image that can be disseminated to the objectifying gaze of a mass audience. But the medium also leads viewers to overlook its inherent complexities and ambiguities. Ultimately, Article 8 jurisprudence, particularly in the ECtHR, occasionally adopts reasoning that contains echoes of the ‘photographs steal souls’ mythology.
Metadata
Item Type: | Article |
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Authors/Creators: |
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Keywords: | privacy; Article 8; media; photographs; misuse of private information; image |
Dates: |
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Institution: | The University of Leeds |
Academic Units: | The University of Leeds > Faculty of Education, Social Sciences and Law (Leeds) > School of Law (Leeds) |
Depositing User: | Symplectic Publications |
Date Deposited: | 04 Oct 2018 14:43 |
Last Modified: | 08 Apr 2020 14:16 |
Published Version: | https://nilq.qub.ac.uk/index.php/nilq/index |
Status: | Published |
Publisher: | Queen's University Belfast, School of Law |
Open Archives Initiative ID (OAI ID): | oai:eprints.whiterose.ac.uk:136656 |