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Photographer's Rights - in Canada

Josh Chapman , Oct 22, 2004; 04:05 p.m.

I know this question gets asked a lot, but there doesn't seem to be much information available beyond what applies to the US. Does anyone out there have any experience with the law in Canada (and Quebec, which I understand is different)? Or alternatively, can you recommend a good source to find out this kind of thing?

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Andrew Somerset , Oct 22, 2004; 04:29 p.m.

Substantially the same as in the US. You are covered by consitutional guarantees of free expression, but commercial uses require releases as in the US.

The substantial difference is in the area of privacy. In Quebec, the human rights code guarantees an individual the right to control of his own image. The Supreme Court has ruled that this means permission is necessary for editorial use except if the individual is a celebrity or if the photo is a hard news photo. If a person is in a news photo, however, they have to be the subject of the news, or their permission is required.

In one recent case, a lawyer sued the Montreal Gazette after it ran a photo of the front of a hotel, in which he was visible leaving the hotel carrying a bag. His secretary saw the photo and jokingly asked why he was leaving the hotel in the middle of the day, the implication being he'd been there with a woman. The Gazette argued that the photo was a news photo. They lost. (Note that although his complaint was harm to his reputation, he could not have won this as a libel case.)

So you have to be careful in Quebec.

Josh Chapman , Oct 22, 2004; 04:34 p.m.

I am in Quebec acutally, and shooting for a University paper (although I'm from Toronto). What do you mean by "hard news?" If the photographic subject is the subject of the article it's okay to use the shot without a release?

Andrew Somerset , Oct 22, 2004; 04:54 p.m.

I'd be leery of giving you any specific advice about Quebec, because I wouldn't want to be responsible for steering you wrong.

Here is the Supreme Court Decision, which spells out the exceptions. I don't know what has happened since to clarify exceptions, etc.

Here is the Gazette case I mentioned, but in French. I couldn't find you an English version, so I hope you read French.

The best I can tell you is to err on the side of caution.

John Sidlo , Oct 23, 2004; 07:12 p.m.

So one interpretation of the above is that if a take a picture of someone in Quebec, in public, I have to get the subjects permission to, for example, post it here? Or publish it in a book of street photography?

If that is so, (and I'm asking), then I'll conclude that the Canadian Law is nothing at all like US law in this regard.

Andrew Somerset , Oct 23, 2004; 08:11 p.m.

John, the law in question is specific to Quebec, so it's not really a matter of Canadian law. It's a matter of Quebec law. Outside Quebec, Canadian law re photography, releases, etc. is essentially similar to US law.

But I'd go with your interpretation. If they live in Quebec and the picture is published in Quebec then you would need their permission.

John Sidlo , Oct 23, 2004; 09:15 p.m.

So, no street photography in Quebec.

Too bad.

Patrice Gosselin , Oct 25, 2004; 10:49 a.m.

Wait, not so fast :)

A few excerpts from the first link Andew provided: "Accordingly, even though she relies on a certain right to her image, the plaintiff respondent must prove that a fault committed by the appellants caused her prejudice." And then: "We should be reluctant to view fault as amounting to a violation of rights alone." "The Quebec law of civil liability requires proof of prejudice resulting from the fault."

I'm no lawyer, but if things go bad in a Quebec's court, you can always take it higher I believe, we're, after all, still part of Canada...:

"...the plaintiff must first show that a right or freedom has been infringed before the defendant attempts to demonstrate that the limit on the protected rights and freedoms is reasonable. For example, freedom of expression enjoys very broad protection in Canada. Any peaceful activity that conveys or attempts to convey meaning is protected by freedom of expression. According to this definition, even defamatory remarks are protected by freedom of expression. Therefore, the person who maintains the validity of a limit on such expression has the burden of proving that the limit is reasonable."

It appears to me that this trial is about some girl who got photographed, and her photo appeared in a magazine, and she felt humiliated when she saw her picture up there, and was teased by her friends. I guess it comes down to something very similar to US law (of which I'm no expert either!), which appears to me as though if the photo is defamatory or such, then don't publish it.

You'll note also that the chief justice wrote that having classmates laugh at you is probably not supporting evidence of prejudice...

Which brings us to the point that: "...there is prejudice where the image is exploited commercially without authorization (...), or for purposes other than those for which consent was originally given"

"the fault lay not in the taking of the photograph but in its publication (...) since the respondent was in a public place when the photograph was taken, that act alone could not be considered an invasion of her privacy. However, the unauthorized publication of the photograph constituted an infringement of her anonymity, which is an essential element of the right to privacy."

Some more boring stuff for those who may still be reading this: "It is also recognized that a photographer is exempt from liability, as are those who publish the photograph, when an individual's own action, albeit unwitting, accidentally places him or her in the photograph in an incidental manner. The person is then in the limelight in a sense. One need only think of a photograph of a crowd at a sporting event or a demonstration."

Another situation where the public interest prevails is one where a person appears in an incidental manner in a photograph of a public place. An image taken in a public place can then be regarded as an anonymous element of the scenery, even if it is technically possible to identify individuals in the photograph. In such a case, since the unforeseen observer's attention will normally be directed elsewhere, the person "snapped without warning" cannot complain. The same is true of a person in a group photographed in a public place. Such a person cannot object to the publication of the photograph if he or she is not its principal subject. On the other hand, the public nature of the place where a photograph was taken is irrelevant if the place was simply used as background for one or more persons who constitute the true subject of the photograph."

So what's different? "In the United States, freedom of expression and public information prevail over the right to privacy except where the information's sole purpose is commercial..." In Quebec: A photograph of a single person can be "socially useful" because it serves to illustrate a theme. That does not make its publication acceptable, however, if it infringes the right to privacy."

"An artist's right to publish his or her work cannot include the right to infringe, without any justification, a fundamental right of the subject whose image appears in the work. While the artist's right must be taken into consideration, so must the rights of the photograph's subject. If it is accepted that publishing the artist's work is an exercise of freedom of expression, the respondent's right not to consent must also be taken into consideration."

Well, that link was enlightening. I always wanted to learn a few things about how things legally work on this side of the border. I'd say, don't worry about street photography in Quebec, snap to your heart's content!

Patrice Gosselin , Oct 25, 2004; 10:58 a.m.

Regarding Andrew's second link about the Gazette case, the lawyer had to prove that the picture caused him prejudice, which he apparently suceeded in doing. (IMHO it's quite ridiculous, but that's besides the point).

Oh well.

Andrew Somerset , Oct 25, 2004; 11:58 a.m.

Patrice, you are failing to distinguish between the court's majority ruling and the dissenting opinion, and as a result, your interpretation is incorrect. Following that interpretation could get someone into trouble.

"A few excerpts from the first link Andew provided: 'Accordingly, even though she relies on a certain right to her image, the plaintiff respondent must prove that a fault committed by the appellants caused her prejudice.' And then: 'We should be reluctant to view fault as amounting to a violation of rights alone.' 'The Quebec law of civil liability requires proof of prejudice resulting from the fault.'"

These are excerpts from the dissenting opinion, not from the court's ruling. The dissenting justices held that the girl had suffered no harm and that therefore there was no infringement of her rights, but the majority disagreed. This is extremely important, as the court ruled that having a few friends laugh at her was sufficient to find the photographer at fault.

The only things you really need to understand about this case are: 1) the photographer LOST, and 2) the court set the bar very low for future complaints.

This is not in the least similar to US law on the matter, or to law in the rest of Canada. Having a few friends laugh at you does not make a photo defamatory. Defamation takes you into the territory of libel, which is a very different matter.

The bottom line is that one can always snap to one's heart's content, but publishing a photo in any way, in Quebec, requires the permission of the subject unless the photo is a hard news photo, or the subject is a celebrity, or the photo somehow serves the public interest in some way that will outweigh (in the eyes of a court; got money for a lawyer?) the rights of the subject.

Please, don't go giving advice based on some half-assed reading of the court decision. Several articles have been written on this subject (by lawyers, I might add), and the CP style guide also reflects the need to get permission in Quebec.

In fact, the CP style guide and several other cautious sources advise getting permission outside Quebec, as a court would consider the Quebec decision in a complaint outside Quebec. Whether you think that's worth your while is up to you.

Here are some links that provide additional info related to the case:

Consenting to an interview is tantamount to giving permission to be photographed

Article on the case (PDF). And another, from the same source.

A brief discussion from the perspective of Ontario.


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