Prison sentence for a photo posted on Facebook?

If the prosecutor’s office and the court continue prosecuting for published photos of police officers at a public venue, then the Republic of Macedonia would turn into a police state in which the media, human rights activists and citizens would be prohibited to document policing activities, which is key for preventing abuses by the police and violations of rights, as well

Author: Zharko Trajanoski

IN THE “CRIME” SECTION FOR POSTING PHOTO OF A FEMALE POLICE OFFICER?

The article from the “Crime Section” titled: “He posted a photo on Facebook without approval” (MKD 10 November 2017), quoted the following content from Ministry of Interior’s (MOI) report in its entirety:

The Gevgelija Police Station pressed charges against K.K. (47) from Gevgelija due to the existence of reasonable suspicion of perpetrating the ‘abuse of personal data’ offence.

K.K. on 15 October, at Marshal Tito Street in Gevgelija, in the vicinity of the “Star pionerski dom” polling station, with his mobile phone photographed a police officer who was on duty during the 2017 local elections and then the photo, without her awareness and approval, was edited and posted as public on his Facebook profile.

THE PHOTO OF A FEMALE POLICE OFFICER POSTED ON FACEBOOK IS PART OF A POST INDICATING ELECTORAL IRREGULARITIES

What it is actually all about you can fathom only after you read the “criminal” Facebook post.

On 15 October 2017, K… K… posted 30 photos on his Facebook profile with critical remarks and noted irregularities regarding the electoral process.

Most of the posted photos show posters of candidates of the political parties. Several photos show people in cars with lists in their hands. One photo shows five persons and a civilian in the middle of the photo is handing his ID to the female police officer, shown in profile with dark sunglasses. The female police officer is not tagged in the photo.

CRIMINAL SANCTION: PRISON SENTENCE OF THREE MONTHS FOR A PHOTO POSTED WITHOUT THE AWARENESS OF THE PHOTOGRAPHED PERSON!

Two months after posting the 30 photos, the defendant was found guilty by the Basic Court Gevgelija because “he has committed the offence ‘Abuse of personal data’ pursuant to article 149 paragraph 1 of the Criminal Code” (A person who collects, processes or uses personal data from a citizen without his permission, contrary to the conditions determined by law, shall be punished with a fine, or with imprisonment of up to one year.)

K.K. is conditionally sentenced to imprisonment of three months, and the Basic Court Gevgelija has fully copied the allegation of the public prosecutors, contained in MOI’s preliminary report, published in the “Crime section”.

But the defendant appealed and the case is still in the Macedonian courthouses. Therefore we won’t go into further analyses.

WHY THE CRIMINAL CHARGE FOR A PHOTO POSTED ON FACEBOOK IS A CASE OF PUBLIC CONCERN?

If the Prosecutor’s Office can lead an investigation and issue an indictment (and the court can pronounce a criminal sanction) for “abuse of personal data” related to a photo posted on Facebook, then this case concerns all Facebook users who post photos.

This case concerns the media workers in particular, because thus far, we haven’t seen cases in which the Basic Prosecutor’s Office acted in the line of duty when photos were published in media (or posted on Facebook), during elections or protests, without the awareness and approval of the photographed persons.

IS IT FORBIDDEN TO TAKE PHOTOS OF POLICE OFFICERS ON DUTY AT A PUBLIC VENUE?

The Macedonian laws have no provisions that explicitly forbid photographing police officers on duty at a public venue.

The Criminal Code has an article for “Unauthorized recording”, but a case for this offence is opened after a private lawsuit and the decisive element is the violation of privacy. As regards the Facebook photo of the female police officer, the case hadn’t been opened upon a private lawsuit, but in the line of duty, and both the prosecutors and the court claim that by posting the photo without the awareness and approval of the photographed person (at a public venue, while on duty), her personal data were used.

The question: “Can you or can’t you photograph police officers while conducting official duty in a public space?” is topical in other countries too, thus we shall share the experiences from the USA and Great Britain as well as the recommendations of the Venice Commission.

TAKING PHOTOS OF POLICE OFFICERS ON DUTY IS CONSTITUTIONAL RIGHT IN THE USA AND GREAT BRITAIN

According to American Civil Liberties Union, taking photographs and video of things that are plainly visible in public spaces is a constitutional right—and that includes police and other government officials carrying out their duties.

Courts in the USA confirm the constitutional right of filming policing activity at public venues, stressing that “the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.”

In Great Britain, photographers often quote (or carry with themselves) the Guidance for Photographers, issued by the association of police officers (1), which affirms the rights of photographing in public spaces. This guidance emphasizes that media and amateur photographers play a vital role, because their photos help identifying criminals.

Limitation of photographing police officers is unacceptable, because it saps the public trust in police services:

We must acknowledge that citizen journalism is a feature of modern life and police officers are now photographed and filmed more than ever… Once an image has been recorded, the police have no power to delete or confiscate it without a court order. (1)

THE VENICE COMMISSION ON THE RIGHT OF RECORDING POLICE OPERATIONS

In the Guidelines on Freedom of Peaceful Assembly of 2010, the Venice Commission points out that

photographing or video recording the policing operation by participants and other third parties should not be prevented, and any requirement to surrender film or digitally recorded images or footage to the law enforcement agencies should be subject to prior judicial scrutiny. (2)

So far, the Association of Journalists of Macedonia (AJM) has condemned the case of police violence against journalists during protests:

The Association of Journalists of Macedonia condemns the police violence against a journalist and three photojournalists that took place during yesterday’s protest in front of the offices of the President Gjorge Ivanov in Skopje.

As AJM puts it:

Professional cameras and lenses clearly identify photojournalists as journalists on duty. The attack against them has the intention to prevent them from photographing the police when they intervene against the protesters.

Back then, the AJM thought that

With the violence against journalists, the police wants to hide the use of unselective and excessive force against citizens. By doing so, the police started playing the role of a censor who decides what can be reported from the protests.

The AJM published the following condemnation when:

Participants in the rally of GDOM did not allow the journalist to carry out her professional activity, or to photograph and record the event, although not forbidden to other journalists.

IS THERE A RIGHT OF PROTECTING ONE’S OWN IMAGE AND WHAT DOES THAT RIGHT ENCOMPASS?

The European Court of Human Rights (ECHR) says that a person’s image constitutes one of the chief attributes of his or her personality and the right of protection of one’s image substantiates individual’s right to control the use of that image, including the right to refuse publication thereof.

ECHR points out that freedom of expression includes the publication of photos and it is an area in which the protection of the rights and reputation of others takes on particular importance, as the photos may contain very personal or even intimate information about an individual or his or her family. (3)

Thus far, ECHR has passed one judgement which points out that in a specific case (photo of a baby taken in a private clinic without the parents’ prior consent) the approval of the parties involved is required.

In Court’s practice, there are cases when police officers violate the right of protection of one’s own image (for instance, allowing journalists to photograph or film suspects in a police station or give the photos to media or give a photo of a personal ID to media).

IS THERE A BAN ON FILMING OR PHOTOGRAPHING IN FRONT OF AND INSIDE A POLLING STATION?

The Electoral Code does not include ban of photographing and filming neither in front of nor inside a polling station. The bans refer only to recording a ballot (4) or non-compliance with the election silence on the part of broadcasters, printed media or electronic media (websites). (5)

With regard to the case of the photo posted on Facebook, the person who posted it, is not tried because he didn’t comply with the election silence or because he recorded a ballot, but because he posted a photo of a female police officer who was near a polling station, without her awareness and approval, i.e. “not in keeping with the conditions stipulated by law and used damaged person’s personal data without her consent.”

WHAT WOULD HAPPEN IF THE PROSECUTOR’S OFFICE AND THE COURT START GOING AFTER PEOPLE FOR PHOTOS OF POLICE OFFICERS PUBLISHED IN MEDIA AND ON FACEBOOK?

If the prosecutor’s office and the court keep invoking the same article of the Criminal Code and start prosecuting everyone who has published photos of police officers in the media and on Facebook, then journalists and media, who regularly post photos and videos of police officers (without their consent) during elections, protests and other public spaces, will be the first to take a punch.

Second in line to take a punch shall be the human rights activists, who also publish photos of elections and protests with police officers in them.

Third in line to take a punch shall be the participants in protests and elections, who also post photos of police officers on social networks.

If the prosecutor’s office and the court continue prosecuting for publishing photos of police officers at a public venue, then the Republic of Macedonia would turn into a police state in which the media, human rights activists and citizens would be prohibited to document policing activities, which is key for preventing abuses by the police and violations of rights, as well.

A great example of citizen documenting of policing activity can contribute to the public interest is the video Detained members of Levica in Skopje. Although the citizen journalist was handcuffed after he had recorded the video, his video served as evidence material in the quick procedure conducted by the MOI against the police officers who breached their authorizations.

This citizen journalist’s video won the first prize in the competition organized by CIVIL – Center for Freedom, unquestionably deserving. Instead of being criminalized and punished, journalists – and citizens too – should be rewarded for publishing photos and videos of possible breach of police authorizations in a public space…

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(1) Association of Chief Police Officers of England, Wales and Northern Ireland Communication Advisory Group, Guidance for Photographers,

(2) Photographing or video recording the policing operation by participants and other third parties should not be prevented, and any requirement to surrender film or digitally recorded images or footage to the law enforcement 4 agencies should be subject to prior judicial scrutiny. (GUIDELINES ON FREEDOM OF PEACEFUL ASSEMBLY, Prepared by the OSCE/ODIHR Panel on Freedom of Assembly and by the Venice Commission Adopted by the Venice Commission at its 83rd Plenary Session (Venice, 4 June 2010)

(3) See von Hannover v. Germany (no. 2), Grand Chamber judgment of 7 February 2012, § 103.

(4) Article 106 paragraph 3 of the Electoral Code: “The Election Board can remove from the polling station any person who uses mobile phone or a camera to take photographs of the ballot paper during voting.”

Article 190, paragraph 2 of the Electoral Code: “A fine in the amount from 450 to 1.500 EUR in MKD equivalent for a misdemeanor shall be imposed to a person who makes use of a mobile phone or camera to take photographs of the ballot paper during voting.”

(5) Pursuant to article 76-b of the Electoral Code, “During the reporting on the days of election silence it shall be considered that media violated the election silence if they broadcast, i.e. publish: any information, photographs, audio and audio-visual materials related to or in which the participants of the elections participate.”

Pursuant to article 182 (1) “A fine of up to 8.000 EUR in MKD equivalent shall be pronounced for a misdemeanor to a broadcaster, printed media and electronic media (internet portal), if:… they violate the election silence (article 76-b).”

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