A picture is worth a thousand words

Court decision was rendered in Quebec city earlier this week, granting damages to a woman wearing a niqab and her husband under the right to one’s image.

The facts are as follows: the editor of a magazine about immigrants in Quebec city took a picture of a woman wearing a niqab in a flea market and used it to illustrate his article about the growing presence of niqabs in Quebec city, a place with less visible minorities. The woman and her husband also appearing on the picture argued in Court that they felt humiliated when their picture appeared in the magazine and claimed $150,000 in damages. The Court granted them 7,000$ in damages.

What is the applicable legal framework?

In Quebec, the Supreme Court decision Aubry v. Editions Vice-Versa (“Aubry”) is still to this day the most important case confirming that individuals have a right to their image. The right to the protection of one’s image is considered as a component of the right to privacy under s. 5 of the Quebec Charter and includes one’s right to control the use which is made of his/her image. In the landmark decision Aubry, the Supreme Court of Canada held that the right to respect for one’s private life should not be confused with the right to one’s honour and reputation under s. 4 of the Quebec Charter even though, in certain cases, wrongful publication of an image may in itself result in an injury to one’s honour and reputation. Since every person is entitled to protection of his/her privacy, and since a person’s image is protected accordingly, it is possible for the rights inherent to the protection of privacy to be infringed even though a published photograph is in no way reprehensible and has in no way injured the person’s reputation.

Article 36 (5) of the Civil Code of Quebec provides that it is considered as an invasion of someones’ privacy to be: “using his name, image, likeness or voice for a purpose other than the legitimate information of the public”. The language “other than the legitimate information of the public” should be interpreted to mean the right to freedom of expression, freedom of press and the public’s right to information.

Plaintiff has to be identifiable in order to claim an invasion of privacy

One of the plaintiff was wearing a niqab. It is therefore debatable whether this plaintiff was in fact identifiable, which criteria is essential in the context of a claim for a violation of the right to one’s image. In Aubry, the Court stated:

53. Since the right to one’s image is included in the right to respect for one’s private life, it is axiomatic that every person possesses a protected right to his or her image. This right arises when the subject is recognizable. There is, thus, an infringement of the 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.

She argued that she was identifiable because she was with her husband who’s face was recognizable and that therefore, people could connect them. The judge agreed with this argument and did not undertake any further analysis on this issue of identifiable vs. non identifiable.

Another interesting angle is that the husband, who was granted the same amount of damages than the main plaintiff, could arguably have been simply considered as incidental to the photograph. In Aubry, the Supreme Court even explained that a person cannot object to the publication of a photograph if it was taken in a public place (which was the case) and he or she is not its principal subject:

59. Another situation where the public interest prevails is one where a person appears in an incidental manner in a photograph of a public place. An image taken in a public place can then be regarded as an anonymous element of the scenery, even if it is technically possible to identify individuals in the photograph. In such a case, since the unforeseen observer’s attention will normally be directed elsewhere, the person “snapped without warning” cannot complain. The same is true of a person in a group photographed in a public place. Such a person cannot object to the publication of the photograph if he or she is not its principal subject. On the other hand, the public nature of the place where a photograph was taken is irrelevant if the place was simply used as background for one or more persons who constitute the true subject of the photograph.

The picture was published to illustrate the growing presence of niqabs in Quebec and therefore, one could argue that he just happened to be there, in a public place, at the time that the picture was taken.

Was the information of public interest?

Where there is a conflict between the right to privacy (more precisely, the right to the protection of one’s image) and the right for information, courts have used the notion of “public interest” to determine if the conduct exceeded the standard permitted by each of the rights claimed. The test entailed for the Court to determine if the information was useful for the public or at least relevant, and the picture must be relevant to the content of the message published.

In Gazette (The) v. Goulet, the appellants used a file photo identifying the respondent in uniform standing in the door of the penitentiary he guards to illustrate an article about the opposition of neighboring citizens to an expansion of the building housing the prison project. The trial judge concluded that the image of the respondent was of no relevance to the content of the article. In the niqab case, the judge articulated the view that the picture was not necessary for the article, and that since the plaintiffs were not public figures, the publishing of their picture without their prior consent was therefore illegal.

The growing presence of niqabs in Quebec could probably be considered as information which is of public interest. One could also reasonably argue that the picture showing a woman wearing a Niqab in a public place in Quebec to illustrate an article about the growing presence of Niqabs in Quebec had a direct connection with the message that the editor attempted to convey to the public. Pierre Trudel published an interesting opinion on this issue yesterday, raising concerns over the restricted position the Court took in this decision on the issue of what constitutes legitimate information of the public, and expressing the view that pictures play a significant role in informing the public.

One negative impact from this decision relates to freedom of information: editors of newspapers or magazines will be very nervous to publish photographs taken in public places to illustrate their stories or ideas which are of public interest. This is unfortunate if we consider the saying that a picture is worth a thousand words.

This content has been updated on September 26, 2014 at 14 h 27 min.