The recent decision in Weller & Ors v Associated Newspapers Ltd [2014] EWHC 1163 (QB) involving the publication by the Mail Online of unpixellated pictures of the children of singer Paul Weller has again shown the potential dangers for the media of publishing online. The details of the Weller case are reported in ‘Image Rights and Privacy‘. I argue that the dangers of publishing online necessitate a set of guidelines for the media which would provide some essential help in avoiding the dangers such publishing now presents.
The Need for Guidelines
The best way to provide guidance and the ensure that the press is able to retain its important, indeed vital, function of being able to publish freely, is through self-regulation, which is far and away the method preferred by the media itself.[1] Guidelines already exist, both in broad context such as those provided by the Press Complaints Commission in the UK, and in-house stylebooks created by agencies for their own use. These, however, are of limited use, being either limited in scope, too parochial, or with virtually no legal information at all.[2]
I hope that the guidelines I offer below, by incorporating both the needs of the courts and the media, will provide a firm basis for discussion and for the provision of further guidelines adapted to more specific needs.
The Online Threat
Before the advent of the Internet the media would have made editorial decisions on what to publish based solely on the laws of the jurisdiction in which it was based and in which it published. This basis for decisions is no longer valid. The media must take into account a far wider, international audience, even if the editors are not specifically seeking such an audience. This is particularly true in any decision on the use of images. The unauthorized use of photographs has been particularly condemned by courts dealing with privacy leaks.[3]
For news organizations, the Internet has introduced both new opportunities and new problems. Most recently the media has had to try and deal with the economic downturn which has forced many traditional newspapers to close down. The way forward for many has been to produce web content, including text, pictures, video, audio and graphics, either as a separate product or as a mirror of their off-line publications. This has involved not only trying to find new business models to profit from the new online technologies, but also trying to find ways to deal with the borderless nature of the Internet.[4]
Protecting the Media Role
Freedom of expression and the role of the media in ensuring that this right is retained continues to be one of importance and relevance to modern society: ‘Exceptions to freedom of expression must be justified as being necessary in a democracy.’[5] The courts have acknowledged and applauded this role.
Nevertheless, it has been argued that the media, faced with growing competition, particularly with the advent of online news and shrinking traditional markets, has pursued a policy of providing stories which seek to entertain their audience rather than inform them and then sought to justify this by claiming the stories serve the public interest .[6]
The media have also argued that readers want ‘kiss-and-tell’ stories and that limiting their ability to publish this kind of story will have an adverse financial impact and damage freedom of speech and freedom of the media. The media has fallen into the habit of consistently citing public interest as a defence for publishing stories which revolve around the private lives of individuals.[7] But as Sir Brian Leveson put it ‘the pressures of public demand, real or perceived, are by no means a reliable guide to the public interest.’[8]
Protecting Individual Privacy
Privacy is an issue of particular concern. Once lost it cannot be retrieved and the harm done to an individual may well be irreversible.[9] The media have a responsibility in protecting privacy rights as do the courts.
As the Weller case illustrates, of particular concern where privacy is concerned is the publication online of photographs, both taken by professionals – and by the growing bands of mobile phone owners, which ‘puts everyone at risk of the amateur photographer.’[10] Now both the celebrity and the private individual face the possibility of seeing their picture not just splashed across the pages of a local or national newspaper, but accessible worldwide to anyone who cares to look at it.
For celebrities, this may be the price they pay for courting the limelight. At the same time a line must and has been drawn by the courts under what can be tolerated and what will not be tolerated.[11] This should not be a question of the courts seeking to impose their own individual standards on the media. Neither is it for the media to rail against this and suggest they are being unfairly prevented from carrying out their duty to inform the public. The important thing is that both the court and the media work together to create a climate where rights are protected adequately while at the same time those who choose to sit in the spotlight are able to get the coverage which they crave (and which the media is only too willing to afford them).
There is plenty of leeway within the proper rights for the media to publish inane stories and pictures of celebrity lifestyles!
Failure to Act
Unless the media takes steps, there is the ugly prospect of additional legislation and restrictions being imposed on the media by law. This is not a welcome prospect. The alternative is for the media to self-regulate, but to do so with a genuine will rather than just paying lip service to the idea. The best way to do this is for media organizations to issue effective guidelines to staff, which they must ensure are adhered too.
Context for the Guidelines
In the following section each of the proposed guidelines has been placed in a more general category so as to be able to briefly discuss the jurisprudence involved in the decision for selecting the proposed guidelines(s). There may well be some overlap, for example when discussing the use of an individual’s picture, the activity, its newsworthiness, and where it was taken as well as the individual’s rights – all relevant considerations, but for the sake of clarity, hopefully, each issue is considered under a separate heading.
The laws and cases discussed cover a wide number of jurisdictions, but are not intended to be definitive. They are intended to provide an overview of the issues taken into account when deciding on the guidelines.
Celebrities
Put at its simplest, the more famous a person is and the more they seek out publicity the less likely they are to be protected by the courts.[12] This can also include individuals who attract publicity for one reason or another, even if they were previously unknown[13] (contestants on reality TV shows come to mind). Individuals who seek out publicity cannot complain when they are photographed[14] as having their pictures taken is essentially the price of fame even if the pictures published are less than flattering.[15]
What is required for the photograph to be actionable is some additional element. For example, if the picture discloses additional information which might be considered private, or if it is linked to a story which gives an otherwise innocuous photograph additional implications.[16]
This is not to say, however, that celebrities are fair game for anyone with a camera. There are bounds, even in the USA – eg if the pursuit of a celebrity borders on harassment.[17] Celebrities may also be able to protect their image commercially.[18]
The case which may have the greatest impact though on when and where celebrities may be photographed is Von Hannover.[19] This made a number of key points which delineated between a celebrity’s public functions and their private life. This case also has implications for the issue of where a picture is taken as well as its content which will be discussed below.
Private Individuals
Courts generally extend greater protection to private individuals who have not sought publicity. The findings in Von Hannover obviously apply not only to celebrities. Pictures of crowds in a public place or attending at news worthy events, for example in a demonstration or watching an event in a public place, or of a person walking past a building which is being photographed, are normally acceptable.[20]
Again, there are limits. In Germany, Article 1(1) and 2(1) of the constitution protects an individual’s personality and consent would generally be needed to publish an individual’s picture when the focus of the picture. If the picture was to be used solely for a commercial purpose, consent would definitely be required.[21] However, if there is a public interest aspect to the picture this could override any requirement for consent as freedom of speech is also protected under the constitution (Article 5(1)).[22]
The French civil code, Chapter 1, Art 9, also protects an individual’s private life and gives the courts substantial powers to deal with any breach. Under French law, it would be unacceptable for example under French law to publish a photograph of an individual leaving a department store to use as an illustration in a story on the economy. This is particularly true if the individual has become the focus of the picture rather than any building or object in the background, no matter whether the picture was taken in a public place or not.[23] However, consent would not be needed if the picture was of a crowd scene or of a person in public life.
Accident victims, or individuals filmed as part of a documentary, even when not the focus of the story may well be protected by the courts.[24] When a picture taken of a couple in an affectionate pose without their consent was used to illustrate an article on the rate of divorce among people whose relationship was based solely on sexual attraction, the taking of the photograph itself was not a problem but the court found its use with the story placed the couple in a false light.[25]
The USA is somewhat different from other nations in its approach to privacy laws, yet court findings have been cited in both English courts and elsewhere. The US courts recognize four major breaches of privacy described in the ‘Restatement (Second) of Torts’ §§ 652A – 652D (1977). In summary, these are; Unreasonable intrusion upon seclusion, Unreasonable revelation of private facts, Unreasonably placing another person in a false light before the public, Misappropriation of a person’s name or likeness.
Not all US states recognize all four, although the second is the most widely accepted in the US.[26] Press freedom is protected by the 1st Amendment to the Constitution and journalists can generally publish anything deemed to be of public interest.[27] However, while the 1st Amendment allows considerable press freedom, it does not provide carte blanche.
Children
As Weller illustrates, the courts have taken a particularly protective view towards the use of images of children, even if their parents are famous or in the public eye.[28] The paramount issue for the courts is the best interests of the child which can override other interests.[29]
Children are entitled to their own privacy, not just as an extension of their parents, and in cases where the parents have not sought publicity for the children, this must be respected by the media.
As in other cases, though, the rights of a child can be superseded by the public interest of the story, but this must be particularly strong.[30]
Public Place
The question of whether or not photographs can be taken in public and private places would seem, at least on the surface, to be a fairly straightforward one. Photography in private places without consent has generally been deemed as actionable, even if the media are there for a legitimate purpose.[31] On the other hand being photographed in a public place should ‘be taken to be one of the ordinary incidents of living in a free community.’[32] Certainly when individuals attend a public event and are caught on film, albeit unintentionally as part of the crowd, they cannot expect to take action for breach of privacy, especially if the event they are watching or participating in is newsworthy. The same is true if the camera doing the filming is there for security reasons.[33]
However, there are restrictions,[34] for example if the person caught on film is visibly distressed.[35]
This is equally true if a photograph of an individual in a public place goes beyond just being a general shot of a person shopping, or, indeed, a celebrity buying the milk. For example, if the location where the picture is taken is simply being used as an excuse to take a picture of the individual who is the true focus of the shot.[36]
Not everything that goes on in public can automatically be published. Individuals have a legitimate expectation of privacy and the media must take this into consideration when using photographs.[37]
The courts have made clear that ‘that the more intimate the aspect of private life which is being interfered with, the more serious must be the reasons for interference before the latter can be legitimate.’[38]
Neither is it for the press to delve into the personal sexual or other behaviour of individuals based solely on the media’s own moral criteria.[39]
Harm Caused
Any decision to publish a photograph or video must take into consideration the impact it will have on the individual or individuals in the picture. This is an objective test based on the concept of what a reasonable person would feel.[40]
However, as Lord Hoffmann pointed out in Campbell ‘the law of privacy is not intended for the protection of the unduly sensitive.’[41]
Covert Photography
The courts have consistently emphasized that covert photography can be particularly intrusive and can have a serious impact on the individual concerned, adding to their distress.[42] In Campbell the court found the covert nature of the photographs particularly troubling, as it would have added to a sense of betrayal felt by the claimant.[43]
When used in a public place this type of photography ‘can amount to an infringement even where there is no private element to the events filmed.’[44] Even when the story is of public interest, the use of images obtained in this way may not always be justified.[45] This can even extend to an area where individuals’ conversations are capable of being overheard, but within the context of the area, for example an office, they might still have some, albeit limited, expectation of privacy.[46]
The courts have been concerned with the harassment that often goes with covert filming, when celebrities constantly feel they are being watched and photographed.[47]
The media in selecting pictures must use the same standard applied by the courts, that of a reasonable person. Editors must consider whether the picture is necessary for the story, or would it simply add to the individual’s distress.
With regard to covert photography, this must also be justified, and in cases involving the paparazzi it is unlikely that it can be.
The only acceptable use of such techniques would be in stories which have a strong public interest and where the information could not be obtained in any other way.
The Public Interest
Public interest has been upheld as one of the decisive factors in balancing the rights under Article 8 and 10.[48] Certainly it is the defence most cited, particularly by the media when attempting to justify overriding privacy rights.[49]
In Von Hannover the court then made an important distinction ‘between reporting facts—even controversial ones—capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual…’[50] In the former ‘the press exercises its vital role of ‘watchdog’ in a democracy’[51] by contributing to ‘impart[ing] information and ideas on matters of public interest,’ while in the latter it does not, particularly if the sole purpose of publishing the photographs is to ‘satisfy the curiosity of a particular readership regarding the details of the applicant’s private life.’[52] In Campbell Baroness Hale addressed the issue in similar vein ‘The political and social life of the community, and the intellectual, artistic or personal development of individuals, are not obviously assisted by pouring over the intimate details of a fashion model’s private life.’[53]
The Media Role
The courts recognize the essential role of the media. In doing so the courts have also given considerable leeway to the need for the media to make its own decisions in following its important function of publishing news of public interest, while at the same time insisting this should not ‘overstep certain bounds.’[54]
The ECtHR was also willing to accept that ‘Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation.’[55]
But this leeway has limits. The courts will expect the media to fulfill their role responsibly, and use caution and care in deciding what to publish.[56]
The media will be expected to show consideration particularly when choosing photographs which, whilst relevant, may cause distress to others.[57]
The Proposed Guidelines
The guidelines below are intended to illustrate some of the potential problems and suggest ways these can be addressed. Hopefully they will be taken up and debated by others. It is important that no such set of guidelines remain static. The media and society as a whole is constantly evolving, new technologies make new demands and present new problems, as do new cultural fads. These must be constantly addressed.
The guidelines in full:
i. Individuals have a right to privacy which extends to their image and how it is used. While celebrities, by courting publicity may generally expect less protection, especially in their public role, they are still entitled to a right to privacy.
ii. Children should not be photographed without consent.
iii. The media should avoid publishing information designed to appeal to only a prurient interest and which is of no public interest.
iv. The media must take responsibility for the information it publishes.
v. Published information must be fair and accurate.
vi. Photographs should be relevant.
vii. Photographs should be accurate.
viii. Photographs should avoid any discrimination towards an individual’s race, religion, sexual orientation, or physical or mental disability.
ix. When an error occurs it must be corrected openly
x. Freedom of expression is an important right in itself. It is up to the media to uphold this right.
xi. The media has a duty to publish information which is of public interest and will foster debate.
xii. Photographs which may add to the distress or embarrassment of the individual should not be used without a strong public interest factor.
xiii. Covert photography should not be used unless the story is of public interest and the information cannot be obtained any other way.
xiv. The media should not harass, pressure or otherwise intimidate individuals.
xv. Photographers should desist from taking pictures once asked to do so.
xvi. Photographers should not engage in subterfuge or misrepresent themselves.
xvii. Photographs should not be taken in a private place without consent.
xviii. Photographs of individuals or groups of people may be taken in public places without consent if they are not the focus of the picture, or they are taking part in, or watching the event voluntarily.
xix. Crowd scenes, or pictures where the individual is not recognizable, may be taken in public places.
xx. Photographs should not be taken in public places without consent if the individual, or group have withdrawn to a secluded area and indicate a desire to be left alone.
Justin Dear is Head of Online News Desk (Asia-Pacific) for AFP and specializes in criminal and media law issues
[1] Rozenberg J 2004; ‘Privacy and the press’ Oxford University Press, Oxford; see also ‘Resolution 1165(1998) of the Parliamentary Assembly of the Council of Europe on the right to privacy’ 14 (viii)
[2] Press Complaints Commission ‘Editors’ Code of Practice’ is, arguably, limited in scope. Among other things the section on privacy mentions in a note the ‘reasonable expectation of privacy’, but does little to put it into context or explain how it applies.
[3] See for example Von Hannover Germany (2005) 40 E.H.R.R. 1 [at 59]; Douglas v Hello! (No 6) [2006] Q.B. 125 [at 56]; Campbell v MGN Limited [2004] UKHL 22 [at 11]; Theakston v MGN Limited [2002] EWHC 137 (QB) [at 78]; Murray v Express Newspapers Plc [2008] EWCA Civ 446.
[4] Melville-Brown, A. (2010) ‘Private Lives’ European Lawyer, 95, 17-21.
[5] Lord Steyn Reynolds v Times Newspapers Ltd. [2001] 2 AC 127 [at 33]
[6] Burton, G. (2010) Media and Society: Critical perspectives. Maidenhead: Open University Press; Franklin, B. (2008) Newszak: Entertainment versus news and information, in A. Biressi, and H. Nunn (eds) The Tabloid Culture Reader. Maidenhead: Open University Press; Ross,K. and Nightingale, V. (2003) Media and Audiences: New perspectives. Maidenhead: Open University Press.
[7] Tugendhat J in LNS v Persons Unknown [2010] EWHC 119 (QB) [at 36].
[8] Leveson, J (2012) An Inquiry into the Culture, Practices and Ethics of the Press, November, 2012. http://www.official-document.gov.uk
[9] Eady. D. 2010 ‘Injunctions and the protection of privacy. Civil Justice Quarterly, 29(4), 411-427; See also I v Finland (20511/03) (2009) 48 E.H.R.R. 31
[10] Vaver (2006) ‘Advertising using an individual’s image: a comparative note’ Law Quarterly Review
[11] See for example Von Hannover v Germany (2005) 40 E.H.R.R. 1 [at 65]; Ibid [at 76]; Jameel v Wall Street Journal [2006] UKHL 44; [2007] 1 A.C. 359 at [147].
[12] Resolution 1165(1998) of the Parliamentary Assembly of the Council of Europe on the right to privacy (para 6). See also Von Hannover v Germany (2005) 40 E.H.R.R. 1 [atOII1].
[13] Krone Verlag GmbH & Co KG v Austria (2003) 36 E.H.R.R. 57 [at 37]
[14] Baroness Hale in Campbell v MGN Limited [2004] UKHL 22 [at 154]
[15] Woodward v Hutchins [1997] 1 WLR 760
[16] Lord Hope Campbell v MGN Limited [2004] UKHL 22
[17] See Galella v Onassis, 487 F. 2d 896 (2d Cir. 1973); see also Von Hannover v Germany (2005) 40 E.H.R.R. 1
[18] Douglas v Hello! [2005] E.M.L.R. 28 Ca (Civ Div) [at 118] But it should be noted that the court was concerned only with the economic aspect of the case and made clear it did not intend to create a general right to personality or an individual’s image which does not currently exist under English law.
[19] Von Hannover v Germany (2005) 40 E.H.R.R. 1
[20] See Lord Hope in Campbell v MGN Limited [2004] UKHL 22; “A person who just happens to be in the street when the photograph was taken and appears in it only incidentally cannot as a general rule object to the publication of the photograph.” See also Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 185 ALR 1 , 13, [at 41].
[21] See Oberlandesgericht (OGL) Hamburg [2004] MMR 413
[22] See Bundesgerichtshof (BGH) [2007] GRUR 139
[23] Aubry v Editions Vice-Versa Inc 50 C.R.R. (2d) 225, [1998] 1 S.C.R. 591
[24] Andrews v Television New Zealand Ltd [2009] 1 NZLR 220
[25] Gill v Curtis Publishing Co., 239 P.2d 630 (Cal. 1952).
[26] see Standler R.B. ‘Privacy Law in the USA’ http://.rbs2.com/privacy.htm).
[27] see Sidis v F-R Pub. Corp., 113 F. 2d 806 (2d Cir. 1940)
[28] Murray v Big Pictures (UK) Limited [2008] EWCA Civ 446
[29] Neulinger v Switzerland (2010) 28 EHRC 706; See also ETK v News Group Newspapers Ltd [2011] EWCA Civ 439; Times, April 22, 2011 (CA (Civ Div)) Collins J [at 133].
[30] See in Leeds City Council v Channel Four Television Corp
[31] Film crews have been sued when entering homes to film victims see Miller v NBC, 232 Cal. Rptr. 668 (1986); Anderson v Fisher Broadcasting, 712 P. 2d 803 (Or. 1986). A television crew filming the work of an official were found to have no right to film inside a person’s home entered by the official without the homeowner’s consent, Anderson v WROC-TV, 441 N.Y.S. 2d 220 (N.Y. Sup. Ct. 1981). See also Ayene v CBS Inc., 848 F. Supp. 362 (E.D.N.Y. 1994)
[32] Hosking v Runting [2003] 3 NZLR 385 , 415, [at 138].
[33] See P.G. and J.H. v the United Kingdom, No.44787/98, §56, ECHR 2001-IX, [at 57]; Gaeta v Home Box Office, 645 N.Y.S 2d 707 (N.Y. Civ. Ct 1996); Friedl v Austria, judgment of January 31, 1995 , Series A No.305-B, Friendly Settlement, Commission report of May 19, 1994, §§49–52.
[34] See Lord Hoffmann in Campbell v MGN Ltd [2004] UKHL 22 [at 74]
[35] [35] Peck v United Kingdom [2003] E.M.L.R. 15
[36] See Lord Hope in Campbell [at112] “the situation is different if the public nature of the place where a photograph is taken was simply used as background for one or more persons who constitute the true subject of the photograph.”
[37] See Von Hannover v Germany (2005) 40 E.H.R.R. 1 for a detailed view.
[38] Dudgeon v UK (1981) 4 EHRR 149 [at 52]
[39] [39] Eady J in Mosley v Newsgroup Newspapers Ltd [2008] EWHC 777 (QB); [2008] E.M.L.R. 20, [at 61]
[40] Lord Hoffmann in Campbell v MGN Limited [2004] UKHL 22 [at 70]
[41] Ibid
[42] Lord Hope in Campbell v MGN Limited [2004] UKHL 22
[43] Ibid Baroness Hale [at 160]
[44] Lord Woolf CJ in R v Loveridge (2001) EWCA Crim 973; See also R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989, [2000] 3 WLR 1327 CA 6th April 2000.
[45] Lord Woolf CJ in R v Loveridge (2001) EWCA Crim 973; See also R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989, [2000] 3 WLR 1327 CA 6th April 2000.
[46] See Sanders v American Broadcasting Company, Inc. 978 P. 2d 67 (Cal. 1999). In this case the conversations of workers in an office were recorded for a news documentary. The court felt that even though workers might expect their conversations to be overheard by other workers, they would not expect them to be recorded and broadcast.
[47] MGN v United Kingdom (2011) 53 E.H.R.R. 5 [at 143].
[48] See for example Bladet Trumso v Norway (2000) 29 E.H.R.R. 125; Handyside v United Kingdom (1976) 1 .E.H.R.R. 737; Hachette Filipacchi Associates v France (2009) 49 E.H.R.R. 23 [at 41]; Krone Verlag GmbH & Co KG v Austria (2003) 36 E.H.R.R. where the court was critical of the failure by the Austrian courts to ” take into account the essential function the press fulfils in a democratic society and its duty to impart information and ideas on all matters of public interest” [at 37]
[49] See Tugendhat J in LNS v Persons Unknown [2010] EWHC 119 (QB).
[50] Von Hannover v Germany (2005) 40 E.H.R.R. 1 [at 63]
[51] Ibid [at 65].
[52] Ibid
[53] Baroness Hale in Campbell v MGN Limited [2004] UKHL 22 [at 156].
[54] Von Hannover v Germany (2005) 40 E.H.R.R. 1 [at 59]
[55] See Prager and Oberschlick v Austria: (1996) 21 E.H.R.R. 1 [at 38]; see also Tammer v Estonia: (2003) 37 E.H.R.R. 43 [at 59]–[63]
[56] Eady J in Mosley v Newsgroup Newspapers Ltd [2008] EWHC 777 (QB); [2008] E.M.L.R. 20 [at 33]
[57] Hachette Filipacchi Associates v France (2009) 49 E.H.R.R. 23
