Page 104 - Courting the Media Contemporary Perspectives on Media and Law

The Mechanical Eye: Looking, Seeing, Photographing, Publishing 95

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in a stroller (or ‗pushchair‘) by his famous mother. The English Court of
Appeal found that the trial judge erred in finding that Master Murray could
have no reasonable expectation of privacy, even though he was in a public
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place, and that he had no arguable case. The cases dealing with the
imposition of liability for invasion of privacy by photographs taken of
plaintiffs on public streets or in other publicly visible places demonstrate that
the law in the United Kingdom is divesting itself of the nexus between privacy
and private places and is beginning to establish liability on the basis of the
individual‘s reasonable expectations of privacy in the given circumstances. It
remains to be seen whether Australian law will develop along these lines,
although Gleeson CJ‘s dicta in Australian Broadcasting Corporation v Lenah
Game Meats Pty Ltd and the impetus for law reform in relation to personal
privacy suggest it may be a distinct possibility.

CONCLUSION

In the last decade, Anglo-Australian law has departed from its traditional
reluctance to provide direct legal protection of personal privacy. These legal
systems are no longer content to allow privacy to be identified closely with
private property. They have started to address the inadequacy of their
previously established position in order to protect privacy as a fundamental
human right. In doing so, they have begun to reconstitute their
conceptualisation of privacy, from a value associated with the possession of
private property to privacy as a human right centred upon, and inherent in, the
individual. The locus of privacy has shifted from the fixed, stable site of
property to the moveable site of the person. In this context, the elision of the
acts of looking, seeing, photographing and publishing became less tenable. In
this time, and related to this, there has been a crucial but unacknowledged
volte face on the courts‘ treatment of privacy and photography. It is no longer
true to assert that there is a general ―right to photograph‖ – that what one can
see, one can photograph. One‘s right to photograph a person now is not
dependent upon the location of the person but upon the expectations the person
in question might reasonably have in the circumstances. A general ―right to
photograph‖ has the benefit of certainty but the disadvantage of providing

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Murray v Express Newspapers Plc [2008] 3 WLR 1360 at 1364-65.
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Murray v Express Newspapers Plc [2008] 3 WLR 1360 at 1380.
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Murray v Express Newspapers Plc [2008] 3 WLR 1360 at 1385.