Page 85 - Courting the Media Contemporary Perspectives on Media and Law

76 David Rolph

that ‗[s]pecial considerations attach to photographs in the field of
privacy‘. There has been a clear change in judicial approaches to
photography. The reasons for this change are the need to overcome a
glaring deficiency in the common law and the obligation to comply with
human rights obligations, notably in the United Kingdom where the
European Convention on Human Rights has been enacted into domestic
law. This article argues that one of the crucial aspects of this development
of direct privacy protection in the United Kingdom and Australia is an
implicit, profound but unacknowledged epistemological shift in the
treatment of photography. Whereas the common law previously treated
the human eye and the camera as equivalent – what one can see one can
photograph – it now treats the human eye and the camera as different.
This article argues that it is only by making this epistemological shift that
one can move from a position where there is no wrong in looking or
seeing (and, by extension, photographing) to a position where
photographing is viewed as a distinct act from looking or seeing, and
photographing, recording and disseminating images can be viewed as a
wrong.

INTRODUCTION

At the outset of Christopher Isherwood‘s Goodbye to Berlin, the narrator
famously asserts:

‗I am a camera with its shutter open, quite passive, recording, not
thinking.‘ [Isherwood]

This conflation of the narrator and the narrated and, more importantly, this
metaphorical equivalence of the human observer and the mechanical recording
device resonate with the common law‘s traditional approach to privacy and
photography. The starting point of the common law is the general proposition
1
that what one can see, one can photograph. Therefore, the common law too, at
least initially, rested upon an equivalence of the human eye and the camera.
Whereas the common law was so certain for so long about this equivalence,
Isherwood‘s narrator was not. One may doubt the claim to objectivity, such as
it is, by Isherwood‘s narrator but the metaphor nevertheless conveys his

1
See also Bernstein v Skyviews & General Ltd [1978] QB 479 at 488 per Griffiths J; Bathurst
City Council v Saban (1985) 2 NSWLR 704 at 706-08 per Young J; Lincoln Hunt
(Australia) Pty Ltd v Willesee (1986) 4 NSWLR 457 at 461-62 per Young J; Raciti v
Hughes (1995) 7 BPR 14,837 at 14,840 per Young J.