Page 100 - Courting the Media Contemporary Perspectives on Media and Law

The Mechanical Eye: Looking, Seeing, Photographing, Publishing 91

His Lordship further stated that the publication of the photographs would
constitute a particularly humiliating and damaging intrusion into Theakston‘s
private life. Ouseley J found that Theakston had a reasonable expectation of
privacy that he would not be photographed when he was inside the brothel.
Therefore, his Lordship restrained the publication of the photographs of
Theakston‘s attendance at the brothel, even though a verbal description of the
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same event was permitted to be published.
There are several points to be made about Ouseley J‘s analysis in
Theakston v M.G.N. Ltd. It is novel to treat the verbal and photographic
depiction of the same event as different categories of information, allowing
one to be published and forbidding the other. It can only be achieved because
there has been a departure from the general ―right to photograph‖. This
development facilitates a distinction between the act of looking, seeing and
describing an event and even taking the photograph of the event on the one
hand, and the act of publishing the photograph of the event on the other hand.
The general ―right to photograph‖ did not discriminate between the acts of
taking and publishing the photograph. Yet Theakston v M.G.N. Ltd is primarily
concerned with what can be published. It is concerned only with the
attachment of legal liability to the publication of a photograph, not to any of its
precedent steps. In making this distinction, Ouseley J accepts that different,
indeed conflicting, expectations of privacy can arise, depending upon whether
one is merely looking, seeing and describing an event or whether one is
photographing an event.
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These themes have been developed in subsequent cases. For example, in
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Douglas v Hello! Ltd (No. 3), the high-profile case in which Michael
Douglas and Catherine Zeta-Jones sued Hello! magazine for publishing
photographs of their wedding, the exclusive rights to which they had already
sold to Hello!‘s competitor, O.K. magazine, the Court of Appeal observed that:

‗This action is about photographs. Special considerations attach to
photographs in the field of privacy. They are not merely a method of
conveying information that is an alternative to verbal description. They
enable the person viewing the photograph to act as a spectator, in some
circumstances voyeur would be the more appropriate noun, of whatever it
is that the photograph depicts. As a means of invading privacy, a

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Theakston v M.G.N. Ltd [2002] EMLR 22 at 423-24.
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For further examples, see D v L [2004] EMLR 1 at 8 per Waller LJ; Mosley v News Group
Newspapers Ltd [2008] EMLR 20 at 689-91 per Eady J.
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[2006] QB 125.