Privacy laws are snapping at photographers' heels

Can the subject of a photo prevent its use? Is it ok to take photos in public places and use them without the subject’s permission? The law used to be easy; the photographer owned the copyright and could use the image without restraint.

The position has now radically reversed. A combination of new judgments culminating in this week’s Court of Appeal judgment preventing pictures of author JK Rowling’s son being published means that stars and ordinary people are now able to control the way images of themselves are used.

First, in 2002 radio station Talksport used a photograph of the racing driver Eddie Irvine to advertise the station. Eddie Irvine successfully argued that anyone seeing the advert would assume that he had endorsed Talksport’s services. Since he was able to command money for advertising, Talksport had to pay him the fee he would have charged. If you use pictures of stars to endorse products, you now need to obtain their permission and usually pay a substantial fee.

What though if a photographer got a great snap of someone walking down the street wearing carrying their latest handbag model; could the designer use it for its latest advertising campaign?

Ordinary people do not have a business endorsing products and cannot succeed under the same principles as Eddie Irvine. However, developments in privacy law mean it is now far more difficult to use such photos.

Stars like Michael Douglas and Princess Caroline of Monaco have established in Court that everyone, however famous, has a reasonable expectation of privacy and that photos of them in their private life should not be published unless there is a legitimate public interest in doing so. This does not just mean that they are entitled to privacy when they are in private places such as their home. It also extends to behaviour they would not want others to know about.

In the case of Naomi Campbell, it was held that photographs of her taken in the street after attending an Narcotics Anonymous meeting should not have been published even though she had previously stated that she did not take drugs (so there was a public interest in disclosure of the fact that she was a drug addict).

Elizabeth Jagger was able to obtain an injunction when the sexual acts in which she was indulging in a nightclub with Callum Best were captured on CCTV even though those acts had been obvious to passers-by (and, tastefully, Callum himself had been recording them on his mobile phone).

In the latest case a photograph was taken by BPL, a celebrity photographic agency, of the son of JK Rowling being pushed along in a buggy by his parents in an Edinburgh street. The photograph was taken secretly by a photographer using a long lens. The photographs were published by The Express and JK Rowling sued on behalf of her son. The Defendants argued that walking in the street is not a private activity and that a right to privacy under Article 8 of the European Convention of Human Rights could not be claimed in respect of it. The Court decided that, although such an activity might not always be private it depends upon the circumstances and that the focus should not be on where the photos were taken but on the use to be made of them.

They observed that this was “the clandestine taking and subsequent publication of the photograph in the context of a series of photographs which were taken for the purposes of their sale and publication, in circumstances in which BPL did not ask David’s parents for their consent to the taking and publication of his photograph. It is a reasonable inference on the alleged facts that BPL knew that if they had asked Dr 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 Court referred to paragraph 6(v) of the Press Complaints Commission Code of Practice which states: “Editors must not use the fame, notoriety or position of the parent or guardian as a sole justification for publishing details of a child’s private life.” And concluded that “subject to the facts of the particular case, the law should indeed protect children from intrusive media attention, at any rate to the extent of holding that a child has a reasonable expectation that he or she will not be targeted in order to obtain photographs in a public place for publication which the person who took the photographs knew would be objected to on behalf of the child. .”

Although the Court was careful to stress that each case must be decided on its facts and particularly disapproved of the secret taking of the photograph, it is likely that it would hold that if such a protection of privacy goes for stars and their children how much more so for ordinary people.

When you take a snap in the street you do not know if the person is involved in private activity. That lovely picture of a couple hand in hand may have been taken when they were on a sneaky adulterous weekend. The crowd picture at the football match may have shown someone who called into work on a ‘sickie.’ As was stressed in the Rowling case, the test of whether you have gone too far will focus on the use of the photos- i.e. what would a person expect would be done with photos of them? So, you could probably publish the football match picture when reporting the match but not for the front of a glossy brochure.

Although individuals do not have value in their faces it will usually be an invasion of privacy for their images to be used to endorse a product. The Courts will also be especially careful to protect the privacy of children; whether or not the photos are to be used commercially. Therefore if you want to use photos of people; obtain model releases which cover all the uses you may make of the photo to ensure that your snapshots don’t end up costing you dearly.

Article by Nicola Solomon, a consultant with media solicitors Finers Stephens Innocent . Finers Stephens Innocent is a legal firm providing pro-bono services to Own-it , an intellectual property advisor for creative businesses.


14th May 2008

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