whitehall Loc: Canada

I thought I would include an article from today’s Ottawa Citizen. In my view the judge came to the right conclusion ( this was a commercial use without a release) but for the wrong reason ( protection of one’s privacy):

An Ottawa woman has won a lawsuit that could have profound implications on the right to privacy of people in the age of social media.
Basia Vanderveen, a communication strategy consultant, successfully sued in small claims court after short video clip of her jogging was used in promotional video for a Westboro condominium project.
“It’s about the right to control one’s image,” said Paul Champ, Vanderveen’s lawyer. “We all have the right to enjoy some measure of privacy, even when we are in public places.
“In the age of social media, when people go to great length to curate their public images, the law has to recognize that the misuse of someone’s likeness or image by another constitutes a violation of privacy. The court agreed with us.”
Not surprisingly, the defendant, Waterbridge Media, has the exact opposite view of the decision, which it called a “gross over extension of the law.”
“In a day an age where everyone has a video camera in their pocket, when everyone has a camera in their pocket attached to their cellphone, it’s unbelievable that a ruling like this was made,” said Waterbridge president Brian Frank.
“This is a ruling that does not belong in the year 2017.”
Vanderveen was videotaped some time during the summer or fall of 2014 as she was jogging along the Ottawa River in Westboro. The videographer worked for Waterbridge, which had been hired to shoot a promotional video for a Bridgeport condominium.

dcampbell52 Loc: Clearwater Fl

The issue here wasn't that she was photographed in public, but that the photo/video was used commercially. In the United States, anyone can photo anyone else from public property (and theoretically use it commercially). However the photos you are mentioning were taken outside the United States and are thusly subject to local laws.
Had the photographer been taking photos in North Korea (for instance) the results for the photographer might have been catastrophic.

jerryc41 Loc: Catskill Mts of NY

Right decision for the wrong reason, at least according to U. S. laws. People have no expectation of privacy when they are out in public. Public and private cannot exist in the same place.

On the pother hand, this is a perfect example of someone using a photo for commercial purposes, something requires a release.

ballsafire Loc: Lafayette, Louisiana

ELNikkor

The frugal ad agency didn't want to hire a model for a 3 second clip. They could have used the producer's office personnel or significant other...

whitehall Loc: Canada

If one reads the actual decision then clearly the case does not turn on commercial use, but the right to one’s privacy. In my view it is a deparure from the common law which was more in line with US jurisprudence. It is a lower court decision, and it remains to be seen whether it will be appealed to the Divisional Court, and thence to the Court of Appeal. It is an interesting decision and food for thought in this age of social media. I attach the hyprlink to the actual decision should anyone wish to read Judge Leclair’s reasoning.

https://www.canlii.org/en/on/onscsm/doc/2017/2017canlii77435/2017canlii77435.html

tombackman Loc: RHODE ISLAND

Will someone please post what the actual law is in Canada about photographing people in public?

jerryc41 Loc: Catskill Mts of NY

Shouldn't the name of agency be capitalized?

"Frugal Ad Agency, everything you want from an agency, but less."

whitehall Loc: Canada

Tombackman. I do not think that there is a great deal of jurisprudence on this point. It turns on various Federal and Provincial laws regarding privacy ( see for example Poirier v. Wal-Mart Canada Corp., 2006 BCSC 1138 (CanLII)) as well as the interpretation of the Canadian Charter of Rights. That said a good starting point is does the person have a reasonable expectation of privacy. Clearly no one consents even impliedly to the use of one’s image for commercial purposes. As well any implied consent can be withdrawn if the person indicated by words or a gestion that he or she does not wish to her his or her picture taken. I hope this is of some help.

Clapperboard

Whitehall Thank you for this information and for the link that shows the actual decision in detail. Useful knowledge in an ever changing world. A world where it seems established laws don't always matter.

Gene51 Loc: Yonkers, NY, now in LSD (LowerSlowerDelaware)

A release would still be necessary . . . Just sayin'

Jaackil Loc: Massachusetts

You are not correct. In the US the right to take people public images does not include for commercial use which is defined as to promote or advertise. A release would be required. In the US you can take a picture of anyone in a public area and sell that image however, selling images is not considered commercial.

Gene51 Loc: Yonkers, NY, now in LSD (LowerSlowerDelaware)

It does seem that the commercial use of the image is what made it an issue. Had it not been published there would be no case. Her motion to hide her face should have been enough to signal that she did not welcome being filmed. The photographer should have taken the steps to hire someone, as a model. Or reach out to the woman he filmed and offer her some compensation in return for a release. Commonsense is a good thing. In this case it is NOT better to beg forgiveness than to ask permission.

jerryc41 Loc: Catskill Mts of NY

happy sailor Loc: Ontario, Canada

I do hope that the judgement is appealed if only to have it clarified that using images for commercial purposes requires the subjects consent, not that it was an intrusion of her privacy! I see that part of the judge's ruling really talks about commercial filming to be used in an advertisement but then goes on to rule it a breach of privacy.

Completely two different topics. Hopefully it gets fixed.