Privacy, Data Protection and Retention
Google Spain SL v. Agencia Española de Protección de Datos
Closed Expands Expression
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Per the request of the police, the plaintiff’s pictures were published in two newspapers when he was 14 years old. The pictures were published as part of a police campaign to expose rioters. The plaintiff argued that the publication of his photographs is a violation of Article 8 (right to privacy) of the European Convention on Human Rights (ECHR).
The court ruled that the police’s actions were justified and proportionate, thus Article 8 was not violated.
The City of Derry in Northern Ireland experienced sectarian violence in 2009–2010. The police organized a meeting with various political parties and community residents where it presented a series of photographs developed from CCTV footage of the violence and solicited help in identifying the persons in the images. None of the people in the images were identified by the attendees of the meeting. The police decided to publish the photographs at two local newspapers, the Derry News and the Derry Journal.
For images to be published, the police guidance documents require that all reasonable lines of inquiry have been exhausted and that the release is proportional with the public interest that it aims to serve. When it comes to individuals under the age of criminal responsibility, publication of their image is not authorized. In this case, the police inspector in charge decided not to seek authorization after a risk assessment of whether those in the pictures would be targeted. The risk was assessed as low and an additional mitigation measure in the shape of a presumption of innocence caption was attached to all photographs.
The court dismissed the plaintiff’s argument that retention of his images constituted a violation of Article 8 and focused solely on “whether the publication of photographs by the police to identify a young person suspected of being involved in riotous behaviour and attempted criminal damage can ever be a necessary and proportionate interference with that person’s article 8 rights.” 
First, the court analyzed whether Article 8 applied to the situation at hand. It used a contextual test, reasoning that the mere examination of whether it is reasonable for a person to expect privacy is not enough, and that many other factors should be taken into account.
The court, based on UK and ECtHR judicial precedent, concluded that “the publication of a photograph falls within the scope of private life.”  The plaintiff participated in activities where there was a reasonable expectation of being recorded, but for the court that factor was not a determining argument, but simply a consideration. Moreover, the court differentiated between a reasonable expectation of a photograph being taken and it being published, with the latter being at issue here.
The court looked through the lens of the best interest of the child principle because the plaintiff was 14 years old when his photos were taken and published. With that consideration, and relying on the UN Children’s Rights Convention and the Beijing principles, the court determined that “a child’s identity should be protected even (or, perhaps, especially) when he or she has been subject to criminal proceedings.” 
The court then looked at whether the police’s interference with the plaintiff’s Article 8 rights were justified. The court assessed the justification through a four part test: (1) was the objective sufficiently important to justify the limitation; (2) are the limitation measures rationally connected to the objective; (3) are they necessary; and (4) do they strike a fair balance. The court ruled that the police’s objective of reducing sectarian violence and their success in doing so through publication of the photos justified the use of the plaintiff’s photos. Thus, the plaintiff’s Article 8 rights were not violated.
 Para. 28 of the decision, https://www.supremecourt.uk/cases/docs/uksc-2013-0181-judgment.pdf.
 Para. 45 of the decision, id.
 Para. 53 of the decision, id.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The court balances privacy issues against the interest of the community. In this case, the public good outweighed the privacy issues.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
“Regarding whether there has been an interference, the court reiterates that the concept of private life includes elements relating to a person’s right to their picture and that the publication of a photograph falls within the scope of private life. It has also given guidance regarding the scope of private life and it has found that there is: ‘a zone of interaction of a person with others, even in a public context, which may fall within the scope of a private life’.”
“…in deciding what was the ambit of an individual’s ‘private life’ in particular circumstances courts need to be on guard against using as a touchstone a test which brings into account considerations which should more properly be considered at the later stage of proportionality. Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.”
“Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person’s reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor.”
“[W]here ‘a person knowingly or intentionally involves himself in activities which may be recorded or reported in public, in circumstances where he does not have a reasonable expectation of privacy’ article 8 is not engaged.”
Case significance refers to how influential the case is and how its significance changes over time.
The decision strengthens ECtHR reasoning on privacy issues in UK courts.
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