Page 102 - Courting the Media Contemporary Perspectives on Media and Law

The Mechanical Eye: Looking, Seeing, Photographing, Publishing 93

humiliation or severe embarrassment, even if taken in a public place, may
be an infringement of the privacy of his personal information. Likewise,
the publication of a photograph taken by intrusion into a private place (for
example, by a long distance lens) may in itself by (sic) such an
infringement, even if there is nothing embarrassing about the picture
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itself…‘

His Lordship draws a distinction between the act of taking the photograph,
which need not attract legal liability, and the act of publishing the photograph,
which might entail legal consequences. People must tolerate having their
photograph taken without their consent but may now complain about its
publication. Whether or not such a photograph will attract liability no longer
depends upon whether the person depicted was present in, or visible from, a
public place but rather the reaction of the person depicted to the context in
which the photograph appears.
A similar view was taken in the same case by Baroness Hale of
Richmond. Her Ladyship stated that, in order to attract liability:

‗[t]he activity photographed must be private. If this had been, and
had been presented as, a picture of Naomi Campbell going about her
business in a public street, there could have been no complaint. She
makes a substantial part of her living out of being photographed looking
stunning in designer clothing. Readers will obviously be interested to see
how she looks if and when she pops out to the shops for a bottle of milk.
There is nothing essentially private about that information nor can it be
expected to damage her private life. It may not be a high order of freedom
of speech but there is nothing to justify interfering with it...‘

However, Baroness Hale of Richmond concluded that the photographs in
question were unnecessary to the story and vividly reinforced the disclosure of
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highly personal, medical information. Her Ladyship‘s position was the
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majority one. Lord Hoffmann‘s dissenting view was that the photographs
were essentially banal and not sufficiently offensive to give rise to legal
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liability. There was a consensus in Campbell v M.G.N. Ltd on the principles

69
Campbell v M.G.N. Ltd [2004] 2 AC 457 at 477-78.
70 Campbell v M.G.N. Ltd [2004] 2 AC 457 at 501-02.
71
Campbell v M.G.N. Ltd [2004] 2 AC 457 at 491-92 per Lord Hope of Craighead, at 505 per
Lord Carswell.
72
Campbell v M.G.N. Ltd [2004] 2 AC 457 at 478. See also Campbell v M.G.N. Ltd [2004] 2 AC
457 at 468-69 per Lord Nicholls of Birkenhead.