(File photo)

If you want to remain anonymous then don’t get into activism

Trevor discusses the court’s take on publishing a person’s photo in the news without their permission

Most people would agree that the conflict between Wet’suwet’en hereditary chiefs and Coastal GasLink has become one of the largest national stories this year, if not the largest.

At the story’s centre is the Office of the Wet’suwet’en, governed by the hereditary chiefs (versus the elected band system). The building represents the very heart of an issue which has been thrust to the forefront of the Canadian — and in fact, global — discussion on Indigenous rights and title.

It was here, over 72 hours, talks between the hereditary chiefs and federal, provincial ministers took place between Feb. 27 and March 1.

It was also here that a number of activists came to show their support for the hereditary chiefs, donning signs with slogans such as “Reconciliation is Dead”.

One of those individuals messaged us after they saw a photo of them in a Canadian Press article on the disputes.

They were upset that the media organization published their photo and asked us to remove it from our social media, adding they would like to see a copy of the paperwork stating they gave permission for their image to be used.

Let me be very clear: there is no paperwork, because in this case there doesn’t have to be.

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While I understand the shock of seeing yourself in a photo — especially one which might be posted online for the country to see — the argument that you have to consent to have your photo taken while demonstrating on a newsworthy topic holds no water.

There is, however, a 1998 Supreme Court ruling which outlines the rules and laws surrounding when someone can take or publish photos. In that ruling the court awarded $2,000 to a woman after finding a public photo of her sitting on a doorstep that was published into a magazine violated her right to privacy.

The woman was not awarded the money because someone took her photo. The photo itself was legal to take, however the court found publishing it infringed on her privacy because the story it was attached to had nothing to do with her. In other words, her “reasonable expectation of privacy”, as the court put it, outweighed the potential newsworthiness of publishing the photo.

Other examples of “reasonable expectation of privacy” would be if a photographer was taking photos from a public street into someone’s second-floor apartment window while they changed with the blinds open. As the location photographed is not public (despite the photo being taken from a public spot) the photos would likely fall into “paparazzi” territory.

So this must mean you can never take public photos of private property, right? Not exactly. The courts have ruled it’s permissible to shoot private property from a distance and that the degree of expectation of privacy depends on what sort of structure it is — for example, a person’s house (quite high) versus a place of business they happen to be frequenting (less so) — and whether the newsworthiness of the images being taken justifies it.

The best example I can think of this in my own career is when I took Luke Strimbold’s photo outside of the Smithers Courthouse. Somehow I doubt he would have said yes if I had asked him permission to use that photo. But because Strimbold was the key defendant in a sexual assault case which is public knowledge, that newsworthiness in a public context supercedes his right to privacy or the fact that he is clearly the main subject of the image.

Put it this way, if I told you I wasn’t going to run Strimbold’s photo because he asked me not to, what would you say to me? Would you agree with my choice?

The same logic applies to this individual who was unhappy about their photo being used. While they were on private property (approximately five feet outside of the Office of the Wet’suwet’en building) they were also involved in a demonstration (one of the court’s examples of a situation where a subject can’t reasonably expect privacy).

Taken alone, the newsworthiness and act of demonstration are both individually sufficient to legitimize the publication of the photo.

Put together, there’s no doubt that the photo’s newsworthiness outweighs any of its subjects’ expectation of privacy. Strikes one and two.

Not only that, the demonstration related to a timely news item (CGL/Wet’suwet’en conflict) versus a generic one and was used specifically in a story on this very topic. Strike three.

To that point, here’s a piece of advice I learned early on in my journalism career that will serve would-be protestors well: if you want to remain anonymous, don’t get involved in activism.


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