Privacy considerations for photography, filming and videoing

The public view photographs of celebrities taken by paparazzi as entertainment and do not raise objections on behalf of the privacy of such individuals. In an ideal state, the free media would allow photojournalists to use their own judgement when such a photograph or piece of film footage should be shot.  

However, some of the landmark cases on the privacy of celebrities have concerned photographs and as such evolved the law in this field. Michael Douglas and Catherine Zeta-Jones successfully sued Hello! Magazine for publishing photographs of their wedding in 2005 and Naomi Campbell’s 2004 privacy action against the Daily Mirror was won after pictures were published of her leaving a Narcotics Anonymous Meeting.

What is the Code of Practice?

For a full explanation of the Press Complaints Commission Code of Practice, see ‘Regulation and self-regulation of the media’ but the parts of the code relevant to photographers (and those shooting film and video) will be listed here. The below clauses are all subject to the code’s public interest exceptions.

Privacy

Clause 3 on Privacy states that ‘everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications. Editors will be expected to justify any intrusions into any individual’s private life without consent.’ Clause 3 also states that ‘it is unacceptable to photograph individuals in a private place without their consent’.

The Press Complaints Commission adjudicated in favour of Paul McCartney and against Hello! magazine in 1998 after the publication displayed a picture of him and his two children lighting a candle for their dead wife/mother Linda inside a cathedral. The statement made by the PCC was that the family had ‘a reasonable expectation of privacy’ inside the cathedral and that this was breached.

On the other hand, pictures taken (with a long lens) of Gail Sheridan, the wife of a politician, in her back garden were not deemed to breach her privacy as this garden was visible from a public road and she was not doing anything private at the time. Thus her complaint to the PCC against the Scottish Sun, which published the pictures, was not upheld.

Harassment

Clause 4 of the PCC Code of Practice, on harassment states that journalists ‘must not persist in questioning, telephoning, pursuing or photographing individuals once asked to desist; nor remain on their property when asked to leave and must not follow them.’ Clause 4 also states that ‘editors must ensure these principles are observed by those working for them and take care not to use non-compliant material from other sources.’

Prince William successfully lodged a complaint with the PCC against OK! Magazine in 2000 after they published pictures taken by paparazzi who persistently pursued him whilst he was travelling across Chile.

Children

Clause 6 of the PCC Code on children states that ‘a child under 16 must not be interviewed or photographed on issues involving their own or another child’s welfare unless a custodial parent or similarly responsible adult consents’ and ‘pupils must not be approached or photographed at school without the permission of the school authorities’. Clause 6 also states that ‘editors must not use the fame, notoriety or position of a parent or guardian as sole justification for publishing details of a child’s private life’.

The code does not want to restrict the media from taking any pictures of children for news purposes. Additionally, the PCC has stated that ‘innocuous’ pictures of children in crowds will only break the code in exceptional circumstances, as there is implied consent to being photographed or videoed. One example of the PCC adjudicating in this light is when the ruling in 2006 that a picture of a father and his 10 year old daughter making obscene gestures at Old Trafford stadium, published in Zoo magazine, did not break Clause 6.

What are the laws on harassment?

The Protection Against Harassment Act 1997 was designed to tackle stalkers but in recent years has been employed by individuals against the press. The Act makes it an offence to pursue a ‘course of conduct’ that causes harassment which includes (but is not limited to) ‘alarming the person or causing the person distress.’

The Act introduced two new criminal offences but it is the civil measure for milder cases of harassment that is most relevant to photojournalists and photographers. The lower-level offence refers to harassment which may not cause the victim to fear any violence.

In 2007, representatives of Prince Charles considered using the Act to protect Kate Middleton, the girlfriend of his son Prince William, from being harassed by paparazzi photographers.

The actress Sienna Miller’s law suit against Big Pictures UK Ltd was due to go to the High Court in 2008 but the two parties settles out of court. Miller accepted £53,000 in damages for harassment and breach of privacy and Big Pictures UK Ltd agreed not to pursue her by car, motorcycle or moped; place her under surveillance or take pictures except in such circumstances as leaving a bar, restaurant or nightclub, on a public street or at a red carpet event.

The pop singer Lily Allen successfully secured a High Court injunction in March 2009 to protect her from paparazzi harassment. Her lawyer claimed that Allen had been constantly harassed for months on end by photographers and the High Court’s decision resulted in photographers being forbidden from following the celebrity or going within 100 metres of her home.

Away from the world of celebrities, Crown courts and magistrates courts do not have general jurisdiction powers to ban the media from publishing the identities of defendants. However, in 2009 Mr Justice Stephen banned all media from publishing any photograph identifying Kenneth Callaghan who had become eligible for parole after serving 21 years for rape and murder. The judge ruled that Independent News and Media Ltd’s Sunday Life newspaper would be breaching harassment laws if it continued to take photographs of Callaghan and an injunction was granted.