Page 101 - Courting the Media Contemporary Perspectives on Media and Law

92 David Rolph

photograph is particularly intrusive. This is quite apart from the fact that
the camera, and the telephoto lens, can give access to the viewer of the
photographs to scenes where those photographed could reasonably expect
that their appearances or actions would not be brought to the notice of the
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public.‘

Again, these dicta demonstrate the treatment of photography as a different
kind of information, one which is more injurious to a plaintiff‘s privacy and
one to which different legal consequences should attach. They also
differentiate between the power of the human eye and the camera lens to
invade personal privacy, finding that the latter certainly can intrude where the
former cannot. There is also evident in these dicta a sense of moral panic
about the use and impact of photography as tantamount to voyeurism, which
indicates the continuity of concern about photographs, dating back at least to
Warren and Brandeis.
One of the significant features of the recent privacy jurisprudence
emerging from the United Kingdom is the revision of the view that no liability
attaches to the taking and the publication of a photograph of a person or an
event in a public place or visible from a public place. This had been crucial to
the general ―right to photograph‖, which had prevailed at common law for
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several centuries. Yet in Campbell v M.G.N. Ltd, the high-profile case
involving supermodel Naomi Campbell‘s proceedings against The Daily
Mirror newspaper for the taking and publication of photographs of her leaving
a ‗Narcotics Anonymous‘ meeting, the House of Lords departed from this
position. For instance, in his speech, Lord Hoffmann stated that:

‗…[t]he famous and even the not so famous who go out in public
must accept that they may be photographed without their consent, just as
they may be observed by others without their consent. As Gleeson CJ
said in Australian Broadcasting Corpn v Lenah Game Meats Pty Ltd
(2001) 208 CLR 199, 226, para 41: ―Part of the price we pay for living in
an organised society is that we are exposed to observation in a variety of
ways by other people.‖
‗But the fact that we cannot avoid being photographed does not mean
that anyone who takes or obtains such photographs can publish them to
the world at large…
‗In my opinion, therefore, the widespread publication of a
photograph of someone which reveals him to be in a situation of

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Douglas v Hello! Ltd (No. 3) [2006] QB 125 at 157 per curiam.
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[2004] 2 AC 457.