Page 89 - Courting the Media Contemporary Perspectives on Media and Law

80 David Rolph

In the course of his judgment Camden LCJ also observed that ‗the eye
10
cannot by the laws of England be guilty of a trespass‘. The effect of Camden
LCJ‘s dictum was to reinforce the view that, at common law, no wrong is
committed by mere looking. So long as there is a direct encroachment upon
the plaintiff‘s land, a degree of protection will be afforded to the plaintiff‘s
land. In the absence of any direct encroachment on the plaintiff‘s land, no right
to privacy will be acknowledged.

WHAT ONE CAN SEE,
ONE CAN PHOTOGRAPH

The common law‘s view that no wrong is committed by mere looking was
clearly established before the advent of photographic technologies in the
nineteenth century. The challenge for the common law was how to respond to
photography. If ‗the eye cannot…be guilty of a trespass‘, what then is the
position in relation to photography? The common law was not especially
reflective about the particular problems potentially posed by photography.
Instead, it simply extended to photography the principle that no wrong is
committed by mere looking. As a consequence, it was possible to assert, up
until the mid-1990s, that ‗as a general rule, what one can see, one can
photograph‘. Implicit in the common law‘s acceptance of a general right to
photograph, although unacknowledged by the courts, was an equation of the
act of looking and seeing by a natural person with the acting of looking and
seeing (and importantly, recording) by a camera; an equation of the human eye
and the mechanical eye – the camera lens. It will become apparent that making
this assumption explicit raises difficult questions about the common law‘s
changing treatment of photographs as a form of invasion of privacy.
This general ―right to photograph‖ and its interconnection with private
property rights has developed through a series of cases. In Sports and General
11
Press Agency Ltd v “Our Dogs” Publishing Co. Ltd, Sports and General
Press Agency sought an injunction to restrain Our Dogs magazine from
publishing photographs taken by a freelance photographer, Mr Baskerville, at
the Ladies‘ Kennel Association dog show. The Ladies‘ Kennel Association
had previously purported to confer on another freelance photographer, Mr Fall,
the sole right to take photographs at its dog show. In turn, Sports and General

10
(1765) 19 State Trials 1030 at 1066.
11
[1916] 2 KB 880 (first instance); [1917] 2 KB 125 (appeal).