How Much Your Picture?

After skipping a month, I have resumed my sequence of monthly posts for the CBA National Magazine’s blog. Today, I take on two recent Québec cases awarding damages to people whose pictures were published without their consent. One is Hammedi c. Cristea, 2014 QCCS 4564, where the defendant was the editor of a small newspaper who had published the picture of a woman wearing the niqab at a Québec City market. The other is Grillo c. Google Inc., 2014 QCCQ 9394, which involved a woman whose image had appeared in Google Street View. I had already written about Hammedi and many of the issues it raises here and here.

In the CBA National Magazine post, I try to approach these cases ― and the “right to one’s image” in Québec law more broadly ― from two different but, I believe, related perspectives, that of “law & technology” and that of law & economics. In a nutshell, I argue that technological developments have raised the cost of the “right to one’s image” as it exists in Québec law, so that it is time for the courts and/or the legislature to reconsider the rules.

The foray into law & economics is a new thing for me, although I’ve been interested in it ever since I learned of its existence in the first year of law school. In fact, it was something of a dream of mine to mix it with constitutional law. The “right to one’s image” is not constitutional, but it is protected of Québec’s Charter of Human Rights and Freedoms, according to the Supreme Court’s decision in Aubry v. Éditions Vice‑Versa, [1998] 1 S.C.R. 591, so I’m getting there. Of course, I can only hope that I haven’t said any enormities ― if I have, feel free to point them out to me.

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