The photographer’s role is to portray, mock, expose and interpret the world on the other side of his lens. It is a role which is disappearing fast. The law of privacy is beginning to bite.
Editors and publishers who fail to obtain the consent of identifiable individuals in an image before publication are at risk of a claim.
The sanctity of copyright in the hands of the photographer, enshrined in the 1998 Copyright Act, is gradually being eroded by privacy laws.
Photographs have maintained pole position for encapsulating and making permanent the spirit of an age and society’s rites of passage. And they remain a more powerful medium than their two main competitors, film and television.
There are countless examples of epoch-making, world changing images – Eddie Adams’ photograph of the Vietcong, taken seconds before a prisoner’s execution, is generally believed to have changed the course of the Vietnam War.
Nick Ut’s young girl fleeing the napalm bombs (see front cover) did the same, with interesting echoes in terms of privacy when she came back into the public eye 40 years later, the scars still visible. Rosenthal’s now controversial photograph of the raising of the American flag at Iwo Jima became a symbol of victory and survival.
If professional photographers are to continue creating images which reflect our society and constitute our collective memory – our national photograph album – then the right of authorities and individuals to censor images which contain personal information must be challenged. Or at least appropriately defined.
In the main, privacy has developed with reference to published material – often photographs – containing what was regarded as newsworthy information. Most of the cases have been brought by celebrities who value privacy both for its own sake and as an economic asset.
The law has been created by the judiciary without explicit, or even implicit, reference to the value of photographs in artistic, cultural and historical terms.
Given the framework imposed by the balancing of Articles 8 and 10 of the Human Rights Act, this is not surprising. No consideration has been given to the impact these changes will have on the profession of photography, the role of photographers as arbiters of change, and on the legacy they bequeath to future historians.
Photographs are big business. The demand for powerful images is constant. As a device for conveying information, they are not only more powerful but, in the judgement of the High Court (Theakston v. MGN 2005), more intrusive than words.
Privacy is a new word for an old concept: Cartier-Bresson remarked that ‘one must always take photographs with the greatest respect for the subject and for oneself”. Encoding this practice, this moral stance, into legal principle alters the balance of the relationship between the photographer and the photographed.
The new right to privacy, as it is now developing in Europe, bestows upon citizens the ‘right to control the dissemination of information about their private life’– this is in direct conflict with the photographer’s job: to create images which reflect our world.
The current obsession with ring-fencing privacy – necessary though it is in some contexts – is curtailing cultural freedom. The idea that individuals have the right to control images of themselves taken in a public place has no social, philosophical or – until very recently – legal foundation. It must be challenged.