ViVien Hoang is a first year law student at Osgoode Hall and is taking the Legal Values: Challenges in Intellectual Property course.
Aubry v. Editions Vice-Versa,  1 S.C.R. 591 altered the legal landscape in which photographers were operating in Quebec. Aubry distinguishes Canadian public photography laws from American ones; the contrast is evident when compared to the New York case Nussenzweig v. DiCorcia, 2006 NY Slip Op 50171(U).
In Aubry, Gilbert Duclos took a photograph of Aubry as she was sitting on the steps of a public building in Montreal. He published the photograph in an arts magazine, the Vice-Versa , without Aubry’s consent. 722 copies of the magazine were sold. Aubry sued for $10,000. At stake was the balance between freedom of expression, as guaranteed by s.3 of the Quebec Charter of Human Rights and Freedoms, R.S.Q. c. C-12, and the right to privacy under s.5.
The Supreme Court of Canada ruled the right to one’s image is an aspect of privacy. The purpose of the protection of privacy is “to guarantee a sphere of individual autonomy for all decisions relating to ‘choices that are of a fundamentally private or inherently personal nature’” (Aubry, para. 52).
What can be more personal than one’s image and appearance, inextricably linked for many people to the concept of their identity and personality? The ability to protect and control the use of one’s image in a photograph is an important element of personal choice and privacy. The majority found there is an infringement and fault as soon as an image is published without consent where the subject is recognizable. They confirmed the trial judge’s award of $2000 to Aubry.
Where photographers once felt free to take photographs of people in public spaces, Aubry gave many of them a reason to pause. The court did not elaborate on what it meant by publish; in today’s age of online photo-albums, blogs, web magazines and do-it-yourself websites, it seems as though anyone putting a photograph on the Internet could be held liable.
Additionally, the SCC did not enact an absolute right to privacy regarding a person’s image. The court did outline cases where the public’s right to information (supported by freedom of expression) would limit a person’s right to privacy. These exceptions would depend upon the context surrounding the photograph: what was the nature of the information and what was the situation of the subject(s)? Exceptions were found for people in the public eye. There would be no infringement on privacy rights for people who were incidentally part of a photograph, i.e. in the background or part of a crowd. There is an infringement on the right to privacy when the background scenery was incidental to the photograph, where the subject was the person. But as with all things artistic, there is room for interpretation. When is a person far enough in the background to be considered incidental? Is there a clear line between landscape photographs where people are part of the scenery and portraiture photographs where the land is part of the background?
The SCC declined to adopt the American approach of determining whether the information in the expression is socially useful, saying “[a] photograph of a single person can be ‘socially useful’ because it serves to illustrate a theme. That does not make its publication acceptable…if it infringes the right to privacy” (Aubry, para. 61). In the U.S., demonstrated by Nussenzweig v. DiCorcia, freedom of expression will prevail so long as the information is not purely commercial. DiCorcia took a picture of Nusenzweig walking along a street. The photograph was shown in galleries, published in a book, and 10 limited edition prints were sold for $20,000-30,000 each. The court dismissed the case against DiCorcia, ruling what he had done with the photographs was not commercial and protected by the First Amendment, regardless of how much money was made.
Photographers in the U.S. remain free to distribute their photographs without consent from the subject person, a sharp contrast to their Canadian counterparts. Whether the ruling in Aubry, made using Quebec’s civil laws, will apply elsewhere in Canada remains to be seen however it seems unlikely that future cases will be decided differently given the broad nature of the reasoning. The SCC’s balancing of the issue has given individuals greater ability to control and assert rights over their image, weighing the inconvenience of photographers having to ask for consent versus the violation of an individual’s privacy by having their image immortalized and reproduced without their control or permission. Exactly how much practical control an individual now has over their image, however, remains to be seen.
I agree with the vast majority of your reasoning, but I find it somewhat troubling to assume that future cases will be decided in a similar fashion. In Aubry, the Supreme Court of Canada strikes a balance between freedom of expression (section 4 of the Quebec Charter) and the right to privacy under section 5. In rejecting the US bright line rule protecting “social useful” photographs, the Court relies on section 44 of the Quebec Charter which guarantees the public right to information.
Though freedom of expression is explicitly safeguarded in the Canadian Charter of Rights and Freedoms, the right to privacy is not. The right to a reasonable expectation of privacy has been interpreted as a right under section 8 of the Charter, but this arises in the context of search and seizure. Nor is the public’s right to information guaranteed.
It will be interesting to see how the court applies its ruling in Aubry where such rights are not enumerated. It may be a violation of an individual’s privacy to have their image reproduced without consent, but the Court is obligated to weigh more heavily those rights that are explicitly within the Canadian Charter of Rights and Freedoms. The Canadian Broadcasting Corporation intervened in this case to challenge the scope of a person’s right to his/her image through the use of the Court’s freedom of expression jurisprudence. In a future case, this jurisprudence may serve to tip the scales in favour of the photographer.
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