This pamphlet is intended to give an outline of your rights and responsibilities as a photographer, but is not intended as a comprehensive guide.

As always, if you’re looking for specific legal advice, contact your local friendly solicitor!

Photographing on Public or Private Property?

In general, you are entitled to take pictures of anything you wish, when in a public place. You may take pictures of private property, people, or anything else you fancy.

On private property, you are also generally allowed to take photographs, provided you have permission to be on the property.

However, the owner may impose conditions on your entry to the property, which may include a complete ban on photography, a ban on photography of certain things, or a ban on certain types of photography (eg, flash photography, video photography etc).

Even where permission is not explicitly needed to enter the property, the owner is entitled to demand that you cease taking photographs, or that you leave the property. If you are asked to leave a property, you should not be threatened or attacked. Reasonable force may be used to remove you if necessary, however. In general, you are better off leaving when asked – the fact that you should not be threatened, does not mean you won’t be. The owner has no right to confiscate or damage any of your equipment.

The occupier of a private property, where he is not the owner, has the same rights as the owner would have. Security guards may also act for the owner or occupier in exercising these rights.

Violating the conditions under which you were admitted to a property voids your permission to be there, and you may be guilty of trespass. Trespass is a crime in some unusual cases but damages are more commonly sought in a civil case.

Photographs in a Public Place

You are not allowed to harass people in the course of your photography – stalking someone, or repeatedly blocking their way to take a photograph of them could be construed as harassment; simply taking a photograph of them probably won’t. Taking photographs of people in public is generally allowed – however, an exception is made where the subject would have a reasonable expectation of privacy. You’re perfectly entitled to take a photograph of someone walking down the street – but hiding in a tree to take a photo of them in their home may get you into trouble.

You are not allowed to obstruct movement on the highway (roads, footpaths, cycle paths etc), or the work of a police officer, while taking photographs. Whether you are regarded as obstructing will depend on the situation, and you will generally be asked to move along by the police, if they view your behaviour as obstructive. If you refuse to do so, or persist in obstructing the highway, however, you may be arrested.

Legal Restrictions

What you can do with your photographs is limited by Irish law. You may be found in contempt of court if you publish a photograph of a defendant, where identity is in question, that is, where witnesses may be asked to identify the defendant. You may also be found in contempt of court if you publish a photograph that might prejudice the defendant by insinuating his guilt (for example, of him being brought to court in handcuffs), or a photograph that might reveal prior convictions (for example, of the defendant at a previous trial).

Your Subject’s Rights

Can the subject of a photo prevent you from publishing it? Most of the caselaw in Ireland has centred on the misuse of celebrity images to imply an endorsement of a commercial good or service. This is dealt with by the courts, in general under the normal rules covering passing off. So, if the subject’s image might be worth money if used in an advertisement or as part of a product endorsement, they have a right to protect the income flowing from that, as a property right.

But what about the rest of the world, who don’t make their fortunes by assuring the world that, as Hollywood millionaires, they choose only the finest home-bottle hair-dyes to colour their hair? As the actor Gordon Kaye found out, when he was photographed by an interviewer whilst recovering from a serious head injury in hospital, there’s not much anyone can do to prevent you from publishing your photos. Provided your photographs are genuine, even if they would bring the subject down in the eyes of society, they’re not libellous.

Up to now, the right to privacy has been largely determined by a mixture of Constitutional rights, and ECHR caselaw – the Minister for Justice has previously said that the private interactions of a person – even in a public place – may be covered by the right to privacy – for example, while doing the shopping, or meeting a friend for coffee. But, once the interactions become public – at an awards ceremony, or waving from the podium at the Olympic Games you lose that right to privacy. It may be hoped that the forthcoming Privacy Bill will clear up these issues, but for now, it is generally safe to presume that you can publish your photographs, unless your subject was in a situation where a reasonable person would believe that they’d brought their ‘portable sphere of privacy’ out with them.

In short, your subject can object to the publication of photos of them if: The photographs are untrue – they’ve been altered in some way, to show something that isn’t the case; The photographs are interfering with the subject’s commercial endorsement business; The photographs are tortiously violating the subject’s privacy.

The last option is still not entirely clear, but use common sense and remember the hypothetical “reasonable person”, and you shouldn’t go too far wrong.

Ownership of Photographs?

If A takes a photograph of B, who owns the copyright in that photograph? As a general rule, the photographer owns the copyright. This is true even if B has commissioned and paid for the photograph – as in the case of wedding photographs. If B wishes to enjoy the copyright, he must agree with A that the copyright will be transferred to him. B should make sure that the agreement and any transfer are in writing – or they may be ineffective under Irish law to transfer the copyright.

The main exception to this principle is where photographs are taken by an employee in the course of their employment – if X Ltd. employs Z as a photographer, then the photos taken by Z in the course of his work belong to X Ltd. and cannot be used by Z without their permission. This can trip up the unwary – for example, Z may be in difficulties if he wishes to use those photos as part of a portfolio of work.

This pamphlet is intended to give an outline of Defamation Law as it applies to online publications, but is not intended as a comprehensive guide. More detailed information is available in leading textbooks on the Law of Torts; in the Defamation Act, 1961; and in the European Communities (Directive 2000/31/EC) Regulations, 2003. This guide is not intended as a substitute for legal advice, and if you think you need to go further than the issues here, you probably need to speak to a lawyer about your own personal circumstances.

What is Defamation?

• Defamation occurs where a false statement is published about a person which tends to lower that person in the eyes of right-thinking members of society. Defamation is a generic term – slander is defamation in a transient form, while libel is defamation in written or permanent (or equivalent) form.

• Defamatory statements include accusations of professional incompetence, or of unethical, illegal or immoral behaviour. Some examples from the Irish Courts include:

- Imputations of sexual impropriety (Sinclair v. Gogarty)

- Wrongly accuse a person of being a sympathiser with terrorism (McDonagh v. Newsgroup)

- Wrongly accuse someone of cheating in a horse race (Green v. Blake)

- Suggest a person tolerated serious crime (DeRossa v. Independent Newspapers)

- Suggest a nightclub proprietor tolerated the sale of drugs on his premises and was a “gay bachelor” (Reynolds v. Malocco)

• It is not necessary for a plaintiff to show that he was in fact lowered in the eyes of others and suffered loss as a result, only that the statement was of a type which tended to do so. This is not a comprehensive list of all possible defamatory statements, but gives a flavour of the range of the defamation definition.

What are the Defences?

Justification

• In a libel action, justification, the truth of the statement, is a full defence. However, it is for the defendant to prove the truth of the statement; all defamatory statements are presumed to be false.

Therefore, if Michael posts his genuinely held belief that, for example, Sarah is incompetent at her job has, prima facie, defamed her, and is required to prove such incompetence in order to use justification as a defence. In practice this is quite difficult. Given that libel actions, alone amongst civil proceedings, are heard in front of a jury, such a defence is high-risk and unpredictable at best. An unsuccessful defence of justification may attract an award of aggravated damages.

Fair Comment

• An alternative defence is the “Fair Comment” defence, although this applies only to matters of public interest. So, for example, while criticism of a Minister for Education would probably have the benefit of the Fair Comment defence, it is uncertain as to whether criticism of an individual teacher would obtain this benefit.

• This defence covers only comment or opinion; not statements of fact.

• Public interest includes comments relating to artistic matters. Legitimate criticism of a work of art is therefore covered by this defence, though personal allegations regarding the artist may not be.

• This defence applies only to comment related to a matter of public interest. Any personal or abusive comments about, for example, a politician would not be considered to be comment on matters of public interest, notwithstanding that the defamed person is in a position bearing on the public interest.

Who is Liable?

Authors

• The primary person who is liable for a defamatory statement is the author. Unless you can avail of one of the defences, you should think very carefully before making that posting.

• Remember that the internet does not afford absolute anonymity and that if you post under a pseudonym or anonymously, you can still be identified via your ISP.

Editors & Publishers

• If you run a site which accepts submissions from authors, by accepting a submission and posting it, you have assumed the position of editor or publisher, and have therefore assumed liability for that posting.

• Likewise, if you run a message board, or a blog with a comment box, you are liable for the content of postings – both yours, and those of others. If you cannot regularly monitor your blog, to ensure that defamatory statements are removed, it may be best not have a comments facility at all. This will depend, of course, on how contentious the subject of your board or blog is

ISPs

Since the coming into effect of the European Communities (Directive 2000/31/EC) Regulations, 2003 a distinction is made between three types of internet provision:

• “Mere conduit” essentially means providing no more than a telephonic network. A service provider who falls within the definition of a “mere conduit” is given immunity and will not be liable for damages or for any criminal sanction as a result of any transmission of information.

• “Caching”. ISPs often keep temporary copies of web pages on their servers so that users can access them more quickly. This kind of “automatic, immediate and temporary storage of information … for the sole purpose of making more efficient onward transmission of the information” will not render an ISP liable for defamatory statements contained in the cached pages. However, such immunity is lost where the ISP does not act quickly to remove a copy of a page when they are aware that the original page has been removed or that its removal has been ordered by a court.

• “Hosting” is the storage of information provided by subscribers. Large companies and organizations are their own hosts, but the sites of small to medium sized organizations and personal web-pages, blogs and discussion board sites will tend to be hosted by an ISP. Under the regulations, hosts are given an immunity from libel liability, which can be lost where a host is aware of defamatory content and fails to act expeditiously to remove or block the offending content.

Best Practice

• While a web host may, having received a complaint, examine the site and decide that the statement is not defamatory, most err on the side of caution and merely remove all content subject to complaint. Unless you are sure you can avail of one of the above defences, it is best to err on the side of caution in this way.

• A web host may receive a letter which holds itself out as being from a solicitor’s firm on behalf of their client. It is a fast and inexpensive precaution to contact the solicitor’s firm at the number on their headed paper and confirm that they are representing the client as the letter purports. Do not discuss the details of the case with the other side if they confirm that they are. It is best to obtain legal representation of your own in this case. Do tell the firm that you have received a letter on their headed paper, if they deny having sent it. Legal practices take misuse of their headed paper very seriously, and will want to take strenuous steps to prevent such misuse.

• In the past a small number of web hosts have received false papers, purporting to be legal summons etc. If you are in receipt of legal papers, demanding an appearance to be entered within a certain number of days at a court office, it is very important to contact a solicitor, who will ascertain their authenticity and give advice on your options.

Misuse of the Defamation Action

Libel is also prone to misuse by those who seek to restrict the dissemination of information. Referred to as a “strategic lawsuit against public participation” (SLAPP), it is not unknown for individuals or companies with significant resources to threaten legal action against a small entity unless they desist from engaging in particular activities. Often the activities engaged in are criticism of a particular company’s product or services, and the legal action threatened is libel.

This issue was considered by the European Court of Human Rights in early 2005. Often referred to as the McLibel case, the facts in McDonald’s Restaurants v Morris & Steel stretch back to 1990 when a number of Greenpeace activists were offered the stark choice by McDonalds to either apologise for distributing leaflets critical of McDonalds or face a libel action. The latter option was chosen, and McDonalds succeeded in the English Court of Appeal and were awarded £60,0000.

An appeal to the House of Lords was not granted, however the defendants filed a case with the European Court of Human Rights on the basis they had not received a fair trial due to the absence of civil legal aid. It was accepted by the Court that the two unemployed activists had neither received a fair trial, nor had their right to Freedom of Expression vindicated.