Does Google’s Street View service breach privacy law?

Taking photographs of people and buildings from public roads is not, as such, illegal. But there are specific restrictions, of which the most recent is section 76 of the Counter-Terrorism Act 2008.

This now makes it an offence to publish information about current or former members of the police, armed services or intelligence services “which is of a kind likely to be useful to a person committing or preparing an act of terrorism”. It is also an offence to elicit or attempt to elicit such information.

I suppose it is just conceivable that a photograph identifying the home address of a potential terrorist target might breach this section. But simply publishing a picture of a house without identifying its occupant would surely not be unlawful. And surely the message to be drawn from recent terrorist attacks in Great Britain — though not, sadly, Northern Ireland — is that we are all terrorist targets now?

Google, though, is sufficiently worried to offer to blur people’s faces and vehicle number plates by default. People can also ask to have pictures of their homes removed, though this might draw attention to vulnerable locations. And Google seems more than willing to remove other images that appear to breach personal privacy.

It therefore seems unlikely that anyone would need to sue Google for breach of privacy. But how would the courts decide such a claim?

The modern law of privacy dates back to 2004, when Naomi Campbell, the model, and Caroline of Monaco, the princess, both successfully challenged newspapers that had published pictures of them without consent.

The effect of these and subsequent decisions on English law is that it is for a judge to decide, on the facts of each case, whether there is an overriding public interest in giving freedom of expression priority over a claimant’s reasonable expectation of privacy.

It was in the Naomi Campbell case that one of the law lords, Baroness Hale, famously remarked that there was nothing to stop anyone photographing the fashion model as she walked down the street: “readers will obviously be interested to see how she looks if and when she pops out to the shops for a bottle of milk”.

But even that simple pleasure was denied to us a month later when the European Court of Human Rights found for Princess Caroline. “The court considers that the public does not have a legitimate interest in knowing where the applicant is and how she behaves generally in her private life — even if she appears in places that cannot always be described as secluded and despite the fact that she is well known to the public.”

It is not yet clear whether the English courts will follow this ruling and ban photographs of celebrities in public places unless they make a contribution to a public debate.

One clue — though it is only that — was a decision by the Court of Appeal last year. The judges refused to strike out a case brought by the parents of a 19-month-old toddler called David Murray against a photographer who took a picture of him while he was being taken for a walk in his buggy. It was hard to see what contribution the picture could make to a debate of general interest, the court said, even if the baby’s mother was JK Rowling, the author.

Max Mosley’s important victory over the News of the World last year does not help us very much because the newspaper did not photograph him in a public place. Rather more useful, though, is a decision of the European Court of Human Rights, delivered in January.

The court decided that Greece had breached the rights of a new-born child by permitting a profession al photographer to take photographs of the baby in the sterile area of a clinic. This happened in 1997 and the child’s parents had been trying since then to get hold of the negatives in order to prevent the photographs from being published.

Even though no photograph had been published, the Greek courts had not taken sufficient steps to guarantee the child’s right to protection of his private life. The Strasbourg judges said that the right to control one’s image required consent from the person concerned (or his parents) at the time the picture was being taken and not just at the time of possible publication.

So the only answer one can give with any certainty to the question I posed in my headline is “nobody knows”. That’s why it’s wise for Google to keep blurring its pictures.

Posted at March 22, 2009 12:50 PM