Stealing ‘souls’? Article 8 and photographic intrusion
In Article 8 ECHR privacy right jurisprudence, photographs are deemed distinct forms of information that are particularly intrusive in 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 this ‘spiritual intrusion’ metaphor is influential in the continental personality right that informs the ECtHR’s approach to Article 8 protection for photographed individuals. This leads to potentially stronger protection for image, including a basic Article 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.