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No pictures please: Portrait Rights in the Netherlands

Apparently at some point getting photographed gets old. On Thursday, August 5 at 9:00 am Naomi Campbell is scheduled to testify in the trial of Charles Taylor with the Special Court for Sierra Leone in Leidschendam. The prosecution wants to prove that Taylor gave a “blood diamond” to the famous model. Campbell did not want to testify but was forced to appear.
Because of the enormous media attention Campbell asked the Court for “protective measures”. Yesterday the Court decided on this request. If it’s up to the judges no one is allowed photograph or video record Ms. Campbell on the premises of the Court without her consent. A remarkable decision.
The Court finds:
that there are legitimate grounds of concern for Ms. Campbell’s security and privacy by virtue of her public persona and the extremely intense media scrutiny relating to her anticipated testimony
The Court’s Registrar is ordered to:
(…) ensure that no person shall photograph, or video record Ms. Campbell while entering the Tribunal building, exiting from the Tribunal building, or while she is in the Tribunal building, without leave of the Trial Chamber or Ms. Campbell.
According to Dutch law, photographing and filming a person is allowed in principle. The law provides for an opportunity to oppose the publication of a portrait, not against making the portrait. After the case Reklos/Greece there was academic debate among lawyers on whether the mere taking of a photograph without permission violates a person’s privacy. Now, that question is answered with a resounding “no”. The law holds no basis for a prohibition order to photograph or film (from the street) without prior approval.
Photos of Naomi Campbell will undoubtedly appear in the press tomorrow. Would Naomi Campbell be able to succesfully oppose publication based on her portrait right? Campbell would the have to argue a reasonable privacy interest. Prevention of threats of retaliation, ridicule or disqualification have been recognized as legitimate interest in case law. But does Campbell have such interest? Doubtful. The fact that she testifies in the trial is well known, just like her much-photographed looks.
Even if Campbell would have a reasonable privacy interest, then the freedom of information comes into play. The privacy interests of Campbell would be weighed against the interest of press freedom. In the case Caroline von Hanover in 2004, the European Court of Human Rights (ECHR) ruled on the balance between freedom of information and the privacy interests of a “public person”. The nature of the photos is important. Do they contribute to a debate of public interest? Or do they only serve to satisfy the curiosity of the public with regard to the private life of the celebrity? Publication of the latter type of photos is deemed to be far less significant.
A photo of Naomi Campbell entering the building of the Court contributes to the public debate suurounding the trial of Charles Taylor. Given the news value of the photograph I would say the freedom of information would prevail.
Daniel Haije

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