The English High Court ruled last month that a person has a right to expect that certain photos taken of them - even after uploaded onto Facebook - will be kept private.

At first this decision sounds surprising. Traditional wisdom has generally been: if it's on the internet, it's not private. However, when considering that Facebook has a billion active users who will upload two million photos while you're reading this article and another 100 billion photos before the year is out, it begins to make more sense.

With the current generation of full-time mobile phone photographers, you and your family probably appear somewhere on the vast collective timeline of Facebook whether you know it or not, begging the question: what if I don't want my photo on Facebook?

The story behind the recent case goes like this: in 2010, Ned attended a party at a family member's home in England where another guest, James, took a series of photos. Some of these photos showed Ned partially naked and engaged in what he later described as "rather silly, schoolboy-like behaviour". James posted the photos on Facebook and they became available to his 1,500 or so friends. The photos remained unavailable to the general public for months until James' Facebook privacy settings were inadvertently relaxed.

Two years later, Ned married a famous actress and immediately became the subject of intense media scrutiny. The photos on James' Facebook page were discovered by a well-known English newspaper, which moved to publish them. Ned brought legal proceedings to prevent them from doing so.

During the trial, Ned's lawyers argued that the photos were taken at a private party on private premises and showed behaviour that a reasonable person would consider offensive to have disclosed to the general public in a national newspaper.

The newspaper's lawyers argued that the photos had become public when posted by James on Facebook and that the photos were taken with Ned's open consent at the time.

First, the Court considered whether Ned had a reasonable expectation that the photos would be kept private at the time that they were taken.

The Court decided that it was more likely than not that the photos were indeed private, citing the following:

  • The photos showed Ned in the company of family and friends at a private party on private premises;
  • The photos showed Ned behaving in a manner in which he would be entirely unlikely to behave in public;
  • Ned had no idea that James would post the photographs on his Facebook account or make them available more widely than to their mutual friends;
  • It did not occur to James when posting the photos that, due to a later change in privacy settings, they would become accessible to anyone with a Facebook account; and
  • Ned's willingness to be photographed was not consent for having the photos published in a national newspaper.

Second, the Court decided that although the photos had been available to the general public for some time on James' profile, and in that sense were public, the Court could still act to protect what privacy remained in the photos. There was also good reason to suppose that if the photos were published, Ned's new step-children would be subject to teasing or ridicule at school.

Taking these matters into consideration, the Court prohibited the newspaper from publishing or copying the photos, or otherwise communicating a description of their contents, on the basis that to do so would be an inadmissible violation of Ned's right to private and family life under Article 8 of the European Convention on Human Rights (ECHR).

The Court's decision at least gives comfort that we can retain some property in the images of our private moments.

Every case will be different, though, and is likely to turn on the facts. If Ned had been in a bar, for example, the decision of the English High Court may have been very different.

Similarly, it is unlikely that the Court would have come to Ned's aid to keep the photos private if he had posted them to the internet. It is difficult to say whether an identical case would be decided the same way by the Bermuda court. The Bermuda Constitution contains no equivalent to the ECHR Article 8 protection for private and family life but the Bermuda Court has nevertheless interpreted Bermuda law so as to conform to ECHR rights where possible, including the rights arising under Article 8.

The most that can be said is that such an application in Bermuda would test the boundaries of the Bermuda court's ability to give effect to free-standing ECHR protections in the absence of Parliamentary intervention.

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