Page 86 - Courting the Media Contemporary Perspectives on Media and Law

The Mechanical Eye: Looking, Seeing, Photographing, Publishing 77

passivity in the face of his experiences and encounters in Weimar Germany.
Yet shortly after making his opening assertion, Isherwood‘s narrator observes
that:

‗Some day, all this will have to be developed, carefully printed,
fixed.‘ [Isherwood]

By contrast, rather than developing its view, the common law was content,
until recently, to treat the acts of looking, seeing, photographing and
publishing what was looked upon, seen and photographed as largely
indistinguishable acts, not attracting liability. Yet, as recent cases suggest,
especially in the United Kingdom, courts now consider the taking and the
publication of photographs as a particularly serious form of invasion of
privacy, which can give rise to liability.
This article has a modest but telling aim. It seeks to explain how this shift
in judicial attitudes occurred. It does so by locating this change within the
broader context of developments towards greater direct privacy protections
which have occurred over the last decade in the United Kingdom, New
Zealand, the European Union and, to a lesser extent, Australia. Perhaps the
most significant impetus for this trend has been the recognition and
enforcement of the right to privacy as a human right. The focus on privacy as a
human right, integral to the dignity and autonomy of the individual, has
challenged the tendency, particularly in legal systems derived from English
law, to conceptualise privacy as a right attached to, or associated with, private
property. This article suggests that this detachment of privacy from private
property has facilitated an implicit and unacknowledged epistemological shift
in the common law‘s approach to privacy and photography. The courts
themselves have not been reflective about this change (Beddard, 1995).
Therefore, in order to elucidate this shift, it is necessary to engage in detail
with the decided cases in which these assumptions are embedded.

THE RIGHT TO PRIVACY AT COMMON LAW

Until recently, one could confidently state that Anglo-Australian law did
2
not recognise an enforceable right to privacy. Privacy might be an important

2
Victoria Park Racing and Recreation Grounds Pty Ltd v Taylor (1937) 58 CLR 479 at 496 per
Latham CJ; Kaye v Robertson [1991] FSR 62 at 66 per Glidewell LJ, at 70 per Bingham LJ;