Page 84 - Courting the Media Contemporary Perspectives on Media and Law

In: Courting the Media: Contemporary … ISBN: 978-1-61668-784-7
Editors: Geoffrey Sykes © 2010 Nova Science Publishers, Inc.

Chapter 5

THE MECHANICAL EYE:
LOOKING, SEEING,

PHOTOGRAPHING, PUBLISHING

David Rolph
Faculty of Law, University of Sydney, Australia.

ABSTRACT

For several centuries, Anglo-Australian law consistently refused to
recognise a legally enforceable right to privacy. As a consequence, no
wrong was committed by mere looking. As Lord Camden evocatively
stated in Entick v Carrington (1765) Howell‘s State Trials 1030, ‗the eye
cannot by the laws of England be guilty of a trespass‘ (at 1066). The
development of photography and photographic technologies did not
immediately cause the common law to review its position. Thus, as
recently as 1995, Young J in the Supreme Court of New South Wales, in
Raciti v Hughes (1995) 7 BPR 14,837 at 14,840 could confidently assert
that ‗[t]here is no doubt that, as a general rule what one can see one can
photograph without it being actionable‘.
More recently, legislatures, courts and law reform bodies in the
United Kingdom and Australia have been more receptive to providing a
remedy against invasions of privacy. In this context, photographs have
come to be viewed by courts as posing a particular problem. In Theakston
v Mirror Group Newspapers Ltd [2002] EMLR 398 (at 423-24), Ouseley
J observed that ‗photographs can be particularly intrusive‘. In Douglas v
Hello! Ltd (No. 3) [2006] QB 125 (at 157), the Court of Appeal suggested