The Intrusion of Privacy

The Intrusion of Privacy
Cepic, Malta, June 2008
Rupert Grey

1 Introduction
This morning I am going to talk about the tension between freedom of expression and the right to privacy, and in particular how the exclusive rights of the author are in important respects being radically reduced. Recent cases raise a major question-mark over the author’s right to publish images taken of a person in a public place without their consent. This is first significant incursion into the rights of the rights owner.

It is an opportune moment to do so: the landscape of privacy in the UK is undergoing what promises to be a seismic change. Two
weeks ago JK Rowling’s 4 year old son won his appeal against Big Pictures. A few days later Big Pictures paid Liz Hurley and Hugh Grant £58,000 for publishing covert photographs taken of them in the Maldives, thus setting a new benchmark for privacy damages; and on July 7th the Max Mosley/News of The World battle over the now famous video footage commences. It promises to be another landmark in the diverting history of the UK’s privacy laws.

Taking a broader perspective, last week Demos published a collection of essays on privacy. It was reviewed in the Guardian, which reported that “it is beyond huge, this issue – it spans every technological advance, every element of Government, every cultural trend”. The right to a private life stands guard, it is argued, for independent thought and personal development.

So these are exciting times. The outcome of these 2 cases will have a major impact on the kind of images we can publish. The copyright-owner will no longer have the exclusive right to copy his images. It will be shared with the persons depicted in the image. The marketability of documentary and reportage photographs will be reduced: publishers, sensitised to potential damages claims, will refuse to buy stock photographs of people unless they have signed a model release, or the agency provides a reliable indemnity. Getty & Corbis already refuse to accept photographs without model releases.

So the role of the photographer, and the agencies by whom they are represented, will change.

1.1 The Homeless Girl
The 1st time the notion of a right of privacy crossed my desk was in the early ‘90’s. My client was woman of about 30. She told me that she had been photographed unawares when she first arrived in London some 10 years before. She was sleeping rough on the streets . It was a powerful image, taken with a telescopic lens, and it revealed the loneliness of the homeless. The years passed and the girl made good. She became creative director of one of London’s leading advertising agencies.

The photographer also did well, and in due course he had a high profile exhibition. The photo of the girl was the centrepiece, and it was widely published by the National papers, not least because the plight of the homeless had risen to the top of the British government’s agenda.

People recognized the girl and she was embarrassed. The photographs said things about her past which she did not want the world to know about. Her privacy, in other words, had been invaded. She came to see me. She asked me to take the matter up with the photographer, the gallery owner and the Press.

Their response was that this was a photograph which qualified not only as an artistic work in its own right, but also legitimate social commentary. Publication was in the public interest, they said: it is the duty of the Press to tell their readers how things are in Britain, and how things should be. And it is also in the public interest that the photographer and the gallery are free to publish artistic works without having to obtain the consent of the subject. We did not get very far. There was no right to privacy under English law.

1.2 Duclos
Now, the next story is similar but it has a radically different ending. It took place a couple of years later, in 1997, and on a different continent – Canada. The photographer’s name was Gilbert Duclos.

The facts were these: Duclos took a photograph of a girl sitting on a flight of steps in a street in Quebec in 1995. She was not a public figure and it was an unremarkable image. She was fully clothed, and occupied about 1/3 of the frame. It was published in a relatively unknown magazine called Vice Versa. She sued for invasion of privacy, and the publisher found itself defending the first major privacy action in Canada. It lost. The girl in the photograph was awarded about C$3,000; not much, but the principle was established that, as the Judge put it: “part of our right to privacy is being able to control the photographic images taken of us”.

The headline in the Montreal Star was “Shot without Consent”; it went on - “Little known fact about life in Quebec: if you don’t have official permission from the people who appear in your photos, they can sue you for making such images public” .

The Duclos case set the scene for developments in Europe over the next decade, culminating in the 2 cases I mentioned a moment ago. I am going to track those developments the better to understand the position we have now reached, but I want first to look at a few images which demonstrate the intrusive nature of photography.

2 Intrusive Images

I have a few examples of two kinds of photographs – reportage and documentary.

2.1 Reportage
This photograph, taken exactly 70 years ago, portrays a refugee from the Spanish War. It was taken by Robert Capa in 1936, and it speaks of desperation and despair. It captures, in a way, the ultimate private moment: so intrusive is it that you want to turn away. Would, or should, this refugee have had a right to privacy at this moment in her life? And, if she did, was there an overriding interest in the public seeing her in her moment of despair?

Move forward nearly 40 years and here is a photograph of the Vietnam War taken by Philip Jones-Griffiths: you can see clearly the mother’s agony, the dying child, the soldier’s indifference. It is a moment of gross intrusion into the life of a mother and child.

This is another refugee, not far from the point of death. It was taken by Scianna in Ethopia during the famine in 1983, and portrays love and despair in equal and contradictory measure. It was taken in Ethiopia on the same day, I think, as Mo Amin’s footage that so electrified Bob Geldof as he sat watching the news that evening in London. Thus was Band Aid born. So plenty of public interest to balance an intrusion that cuts to the quick.

I have not brought the fourth photograph, deliberately. So embedded is it in our culture and history that we carry it with us all the time: Nick Ut’s photograph of the naked girl-child screaming down the napalm road in Vietnam. It was the last frame in Nick Ut’s 35mm roll of black & white film. He had to run to get the pic and he was still running when he took it. Forget pictures that speak a thousand words. This picture (and it is one of very few; the bombing of Guernica in 1936 is another) changed the course of history. It hides nothing.

Now I show you these pictures because I want to ask you this: – would Nick Ut’s picture make it past the editor if it had been taken in Afghanistan last week? I asked this question when I was participating in a debate on privacy in Reuters a few months ago. The audience were for the most part journalists. A child? Naked? In agony? What editor today,they asked, would risk putting such a picture on the front page?

2.2 Documentary Photographs
This type of photography serves a completely different purpose. The public interest is usually more difficult to identify. Here is a photograph of a gilded youth at Ascot, Britain’s premier social gathering, indignant, it seems at Martin Parr’s invasion of his privacy.

And this, of two young girls, tells of an intimate friendship. It invades their personal space. It is an ordinary photograph of an ordinary moment in time. Like many other photographs, it simply records our life and times.

As does this. A private moment in a crowded place between a child and his teacher. Yet it conveys the magic in such a relationship, something important about the business of teaching.

Without images such as these our society would not just be a poorer place; it would lose its way, for the records of our past are the signposts to our future.


3 The drivers of change

I want next to consider why privacy has risen so fast up Society’s agenda, so that the changes I have outlined can be seen in context. I have selected what seems to me to be the four most important drivers:-

3.1 Invasive environment
We live in an increasingly invasive social environment. Advertisements confront us hundreds of times a day. Sophisticated pull advertising interferes with, even re-directs, our lives. Product placement in feature films, about to become legal in the UK, is a highly manipulative technique for destroying independent thinking. The average Londoner is now photographed 300 times a day by CCTV cameras. The frot page headline in Britain’s Daily Telegraph in December last year was “Britain: The most spied on nation in the world”.
Richard Thomas, the Information Commissioner, was quoted, at an international privacy conference held in London last week, as saying “We are sleep-walking into a surveillance society…as ever-more information is collected, shared and used, it intrudes into our private space and leads to decisions which directly influence peoples’ lives”.
It is unsurprising that the European Courts consider that our private space needs protection.

3.2 Tabloid Press
The European tabloid press have acquired a reputation for harassing those in the public eye to get their images. The word paparazzi has become part of the language. The most famous example was the fraught relationship between Princess Diana and the press. There was no privacy even in her death, as the paparazzi competed to get pictures of the wreckage in the Paris underpass. Plainly those in the public eye need protection.

3.3 The advent of technology
Technology has facilitated the invasive environment I referred to just now. More significantly, ordinary citizens have involuntarily surrendered their privacy as their lives are conducted increasingly online. Through blogs, pod-casts, texting, buying online and mobile phone cameras we are putting into the public domain comprehensive information about ourselves without a second thought. Corporations and governments are gathering storing and cross-referencing information with the result that they have a knowledge of our lives on a scale and depth which is unprecedented in human history. They know us so intimately that the advertisements which spontaneously appear alongside, for example, your Googlemail reflect your personal needs and aspirations with uncanny accuracy. It is getting dangerously close to manipulation.

In a world with no privacy there is no freedom of speech. This is fertile ground for a totalitarian regime. So the advent of a privacy right is essential and timely.

3.4 Photography
It is widely agreed that photography as a device for invading privacy can be extraordinarily intrusive. There are a number of reasons for this: the massive improvement in the technology of the long lens, the introduction of autofocus, and the invention of fast film, not to mention the fire power of the digital camera.

Further, the arrival on the scene of the "citizen journalist" has massively enhanced the number of photographs available to newspapers. So the capacity for gross intrusion, as well as for disseminating intrusive images, has been transformed.


4 The Origins of Privacy

4.1 EHCR 1948
Now, back to the right to privacy. It is a modern conceit, this right, and a western one, at least as far as its legal status is concerned. So where does it come from? The answer, in short, is that it was devised immediately after the last war to protect the citizens of Europe from their own Governments: there was universal agreement that the intrusion into the lives of individuals by the pre-war fascist powers was never to be repeated. The European Convention on Human Rights was ratified in 1948:

Article 8
“Everyone has a right to respect of his private and family life, his home and his correspondence” and


Article 10
“Everyone has a right to freedom of expression. This right shall include freedom… to receive and impart information and ideas without interference of public authority and regardless of frontiers…
The exercise of these freedoms… may be subject to restrictions as are prescribed by law for the protection of rights of others.”

Articles 8 and 10 are deliberately in conflict. It is the job of the Court in Strasbourg to balance, on a case by case basis, the one against the other. Article 10 provides photographers and the press with a potential but uncertain defence against claims that they have intruded into a person’s privacy.

Since 1948 the need to protect citizens from the State has evolved into something far more subtle: it now embraces the right to control the distribution of information about oneself; and the right to what Lord Woolf, then Master of the Rolls, described as “the personal space in which the individual is free to be itself, and also the carapace, or shell, or umbrella, or whatever other metaphor is preferred, which protects their space from intrusion.”

So here is the conflict: what is more important? The photographer’s freedom to publish his images (Article 10), or their subject’s right to their own space, to control the deployment of information about themselves (Article 8)? And what about Society’s right to a mirror of its own times – the creation and conservation of which is one of the jobs of the image-maker and the image-dealer? And, equally important, what about posterity’s right to its own history?


4.2 Four Important Points
These 4 points are unrelated. I mention them now, before looking at the key cases, so that you can better understand the framework within which the law of privacy has developed:-

• There is no law that says you cannot take photographs which invade a person’s privacy (provided the subject is not being harassed). It simply says you cannot publish them.

• The economic right of individuals to exploit the value of their own image is not the same thing as their right to a private life. The two can be easily confused, particularly when – as has frequently been the case – Claimants are celebrities who claim both rights in parallel, as for example Michael Douglas & Catherine Zeta-Jones did in their long-drawn-out claim against Hello! I am not, today, looking at those cases. I am simply looking at the right to privacy. Whether the claimant is an ordinary person or a celebrity should make no difference.

• In the UK the law of privacy is being made by Judges, not by Parliament. The latter abdicated responsibility for grappling with privacy in June 2003. Although privacy has a long pedigree as a traditional social value, it is a newcomer to the field of jurisprudence, and so the judiciary has started with an almost completely blank canvass. There has, unsurprisingly, been judicial disagreement about what privacy means and when it should be protected. They also change their own minds. So the lawyers to the stars, not to mention those who look after photographers and agencies, have (along with their clients) been riding a rollercoaster. The ride has by no means come to an end.

• Nobody, so far, has addressed a Court in the UK on behalf of the photographic industry as a whole, and specifically on the role of the photographer as a recorder of, and commentator on, contemporary life.



5 Leading Cases
I remarked above that the law of privacy in the UK is being created by the judiciary; so I make no apologies for taking you through the recent and current cases. I start with Naomi Campbell.

5.1 Naomi Campbell 2003
Campbell was covertly photographed emerging from Narcotics Anonymous in Los Angeles. Having denied to the world that she took drugs, the newspapers took the view, perhaps understandably, that it was in the public interest to expose her hypocrisy. They published the photographs.

Campbell took her claim to the House of Lords. Lord Hope said it was the covert photographs of Campbell which tipped the balance in favour of protecting Campbell under Article 8. For him, the photographs “added greatly overall to the intrusion the article as a whole made into her private life”.

Baroness Hale’s stated, in a memorable phrase, that Campbell could have had no complaint if she had been photographed “going about her business in a public street… or when she pops out to the shops for a bottle of milk”.

5.2 Theakston 2002
Theakston tried to get an injunction to prevent publication of a story about his visit to a Mayfair brothel, where he had a diverting time with one prostitute (according to Theakston) or three (according to the prostitutes). The Judge – in the High Court - permitted publication of the story but he granted an injunction in respect of the photographs: “The Courts have consistently recognised that photographs can be particularly intrusive …. the right to freedom of expression by publication of such photographs is outweighed by the peculiar degree of intrusion into the integrity of the Claimant’s personality which their publication would entail”.

5.3 Peck 2003
This is a European case. Peck was filmed by one of the first CCTV cameras in his hometown of Brentwood, England. He was recorded late one night in 1995, knife in hand, on the point of committing suicide. I am glad to say he changed his mind – and not because of the CCTV camera. The camera belonged to the Local Authority which then supplied the stills to, inter alia, the BBC – not because it wished to embarrass Peck, but to publicise the effectiveness of CCTV in deterring criminals which, it argued, was a legitimate public interest.

Peck did not agree. He pursued his claim all the way to the House of Lords in England, as well as the Press Complaints Commission. He lost at every stage. Undismayed, he took up arms in Strasbourg, where the Court considered that England should have extended Peck protection. He was awarded about £10,000 in damages.

5.4 Von Hannover, 2004
This was another European case. It was the culmination of an 11 year campaign by Princess Caroline of Monaco to secure protection from the paparazzi. The most important part of the judgement, from the point of view of agencies and libraries is the emphasis placed
on the obligation of member states to protect the right of public figures to “control the use” of photographs of themselves. This knocks on the head the traditional belief that photographs – other than commissioned portraits – are controlled exclusively by the copyright owner.

5.5 Elton John, 2006
Sir Elton sued The Mail for publishing a photograph of him in a baseball cap and tracksuit outside his London house. This was a High Court case and, not for the 1st time Baroness Hale’s milk-bottle analogy came into play. There was nothing, the Judge said, about the information conveyed by the photograph of Sir Elton which would have made its publication intrusive or insensitive.

5.6 Murray, 2008
David Murray is the 4 year old son of JK Rowling and Mr Murray. When he was 19 months old David was photographed covertly in a buggy in a street in Edinburgh. His mother and father were walking alongside. JK Rowling was pregnant at the time. The photograph was taken with a telescopic lens and it showed David’s profile, his clothes, the style and colour of his hair and of his skin.

It was published by The Sunday Express Magazine under the headline “My secrets” together with a quote attributed to JK Rowling. Although it was true that she had said the words, it was many years earlier in relation to a different child.

Neither JK Rowling nor Mr Murray pursued a claim on their own behalves. They pursued it - claiming an injunction and damages - on behalf of their son. The claim was against The Express Newspapers and Big Pictures, the agency which disseminated the photograph. The Express settled, we know not for how much. Last year Big Pictures applied, successfully, to strike out Murray’s claim on the basis of Baroness Hale’s milk bottle argument.

David appealed. A couple of weeks ago the Court of Appeal granted his appeal. By this time he was 4. The facts which, amongst others, the Court took into account were:-
• The child’s privacy rights were distinct from those of his parents.
• There was no distinction between recreation time which was private in nature and going to get the milk, contrary to what Baroness Hale maintained;
• Publication of photographs of getting the milk was not necessarily an intrusion into privacy;
• It was reasonable to infer that Big Pictures knew “that if they had asked Mr and Mrs Murray for their consent to the taking and publication of such a photograph of their child, that consent would have been refused”.
• “The photograph would not have been taken or published if [David] had not been the son of JK Rowling”.

This decision is significant, but it leaves a number of unanswered questions: how on earth can David, at the age of 19 months, have been anything other than completely oblivious both to the taking and the publication of the photograph? Nor do I understand how clear how he could have had “ a expectation of privacy”.

The action has yet to be tried and the outcome is by no means a foregone conclusion. The general view amongst privacy lawyers in the UK is that David will succeed at trial, and if he does the interesting question is what level of damages this case, and cases like it, will generate.

5.7 Liz Hurley and Hugh Grant, 2008
I mentioned this at the beginning. Photographed in the Maldives in 2004, the images were published under the headline “Hugh’s that gooseberry” and “Liz does the blokey-cokey” in the News of the World. Once again the pictures were supplied by Big Pictures who were sued, along with the newspaper. It is important to note that the £58,000 was a settlement not a judgment, and interesting, too, that it is a decent increase over the £37,500 which Sienna Miller accepted from the Sunday Express for photographs taken of her naked backstage.

The judicial assessment of the appropriate figure for damages will not be influenced by these settlements, but they can be considered a useful straw in the wind.

5.8 Mosley
This case is in the UK. It involved video footage and frame-stills. The trial starts on 7 July. It will be just as well publicised as the Rowling case, possibly more.

Mosley’s claim is against Newsgroup. He is seeking damages for intrusion into his privacy on account of the publication, in the News of the World, of stills taken from video footage of Mosley participating in sexual activities with prostitutes, this time five of them. They were published under the headline “Formula 1 boss has sick Nazi orgy with five hookers”. The article, together with edited footage of the video, was made available on the News of the World website until a complaint was made by Mosley’s solicitors on the day of publication. By that time the online version had been visited approximately 435,000 times, and the edited footage of the video itself viewed some 1.5million times.

When Mosley applied for an injunction it was refused by the Judge on the grounds it was too late. The offending material was already in the public domain: “the court should guard against slipping into the role of King Canute”. A speedy trial was ordered. If the case goes to full trial and Mosley is successful, the damages award – and the reasons given for it – will set a major benchmark for privacy (unless, of course, there is an appeal).

6 Summary of Present Position
Few cases get to Court. Claimants need massive resources in money and determination. What will happen in practice is that, once the law has become clear – and the recent cases are the perfect opportunity for the authorities to clarify the matter – Claimants will be quicker to sue and publishers to settle. What is important for agencies and photographers is not to find themselves at the wrong end of an indemnity you have given to a publisher who has been forced, or simply decided it is expedient, to pay out damages (and costs) following complaint about an image supplied by you.

Here are four guidelines taken from the cases mentioned above:-

A. If it is clear that the image might (reasonably) be thought to intrude into the privacy of an individual, be on your guard before you authorize publication; or get a release;

B. If the person in the photograph had, or may have had, a reasonable expectation of privacy at the time that the photograph was taken, Article 8 is likely to be engaged; it is more likely if the photograph was taken covertly;

C. If publication of the photograph would, or might, serve the public interest, there is at the very least an argument that Article 10 should prevail. If the photograph is of individuals currently in the news, particularly if in a position of authority, there is a reasonable prospect that the public interest argument will bite;

D. If the image has been so widely disseminated already that it is effectively in the public domain already, that too may be an effective response. The Mosley case for example.

7 The Changes ahead

You are, in other words, in the process of being appointed your own censor. You will in that appointment constitute a greater threat to freedom of speech than the Lord Chamberlain was in his time (the post of official censor in the UK was abolished ½ a century ago), because you can lampoon and satirize 3rd parties; but you cannot do the same to yourself. And satire is the ultimate defence against oppression.

I believe that news and reportage photographers – although they will have to be careful – will be relatively untroubled by these developments. They will for the most part be able to claim the protection of public interest.

It is the documentary photographers about which I am concerned. These are the photographers who create for us the mirror of our times, rearrange our perceptions and alter our thinking. I quote Cartier-Bresson:

"Of all the means of expression the photograph is the only one that fixes forever the transitory instant. For me photography is a simultaneous recognition, in a fraction of a second, of the significance of an event... What is there more fugitive and transitory than the expression on a human face?"

What is more private, more intrusive, than a permanent record of such a transitory moment? As a student at a workshop I was giving during the last Chobi Mela festival in Bangladesh pointed out, good documentary photographers are really nothing more than voyeurs, an attribute with which she did not find favour.

So photographs of identifiable individuals in a public place will become increasingly risky. We are entering into the age of the model release when it comes to dealing with commercial publishers


I do not offer a solution but I put the issue on the table for debate: the consequences of developing the law of privacy has not been acknowledged by our judiciary, which has focused exclusively on protecting individuals from the rising tide of intrusion by the press and by the State.

I will leave you with four thoughts on this:-

1. If we turn our streets into forbidden territory for photographers and documentary film makers, there will be no record of the ordinary lives of ordinary people. From the perspective of the photographer the authorities are gradually acquiring the right to censor artistic expression.

2. The most dangerous form of censorship is self-censorship. It is driven by fear of the consequences of publication and has, by definition, no resistance.

3. I believe that photo journalism is alive and well, and that this is particularly the case outside Europe. Photographers I have talked to in the majority world see themselves as the voice of the poor and the dispossessed, and their photographs as a vehicle for change. I have a business card from one of them, describing its owner as a "photo-activist". This is a precious tradition, and gives me huge hope.

4. Perhaps the occasional invasion of a person's privacy is a price that has to be paid. This is what photographers and artists have done for centuries: they bear witness to our lives and times, and these images are our cultural reference points. They are our messengers. Censoring these photographs is like shooting the messenger: it will not change the message.

If the photographic industry wants to disseminate images of more than consenting models and landscapes, it needs to flex its muscles. It has done so before, lobbying the law-makers in Parliament prior to the changes in copyright law in 1988. But this time it is different. Judges can’t be lobbied. That indeed is the whole point. But they can be addressed. The publishing industry intervened as an Interested Party in the McKennit case – one of the leading cases in the UK on privacy (but not about photographs), and their Counsel put to the Court the point of view of the industry.

There is no reason why the photographic industry should not seek permission to do the same in an appropriate case. I am not suggesting for one moment that such an intervention will change the outcome of the case; but it will at least inform the Judges. They may not be swayed but they will listen. So, possibly, will the Press.

Rupert Grey
Swan Turton May 2008
With thanks to Magnum for the photographs