Privacy rights in the picture

In a recent case, JK Rowling forced the English court to reconcile the different approaches to celebrity privacy in England and Europe, shown by decisions of the House of Lords in the Naomi Campbell case and the European Court of Human Rights (ECHR) in a case involving Princess Caroline of Monaco.

In Campbell, the House of Lords held that no one has a right to prevent themselves from being photographed when they are in a public place with no reasonable expectation of privacy. However, Campbell had been photographed leaving a meeting of Narcotics Anonymous. The Lords held that the photographs revealed too much information, and that this was an occasion when she had a legitimate expectation of privacy. Accordingly, the photographs could not be used.

In the Princess Caroline case, the ECHR went further. Photos of the princess playing with her children, shopping and dining with a friend had appeared in a German magazine. Under Campbell, they could have been published in England. However, the ECHR held that the photographs should not be published as they related to her private life and not to any public interest debate.

Even if a public interest in Princess Caroline’s private life did exist, her right to privacy overruled it. The court expressed concern about the level of media harassment endured by public figures. The ruling implies that almost any photograph will be prohibited from publication, but the ECHR did not give any guidance about what, if any, limits remain.

In Rowling, an unpixelated photograph was published of JK Rowling and her husband pushing their son in a buggy along an Edinburgh street. Rowling relied on the Princess Caroline case to prevent further publication.

So how was the judge to deal with the conflicting views of the House of Lords and the ECHR?

First, he noted that there was nothing in the photographs that raised any of the special circumstances in Campbell. In cases where children are photographed, if there is a risk that the child’s security may be compromised, or if taking the picture causes the child distress, a higher degree of protection will apply and the photograph may breach privacy.

He then considered whether the Princess Caroline case prevented the publication of any photographs at all or whether some were still permitted. He ruled that while a person’s private recreation time might now be protected even if it takes place in public, there is still a basic area of innocuous public activity where no right to privacy exists. As a result, since Rowling and her family were simply walking in the street, they had no reasonable expectation of privacy and the photographs of them could be used.

None of this makes it any easier for photographers and editors to decide whether or not a photograph can be used. The rationale of the Campbell case was relatively clear: the photographs should not contain information that was personal or might endanger safety or such like, even if they were taken in a public place.

Now, however, there is an increased and indistinct range of private activity that takes place in public and cannot be photographed. A trip to the shops is not protected; but playing in the park with one’s family probably is, as is a dinner in a discreet part of a restaurant, because playing in the park and the discreet dinner are private occasions.

Photographers and editors will have to consider the occasion being photographed and the information that the photograph reveals.

Michael Hales is a partner at Nabarro

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