Page 94 - Courting the Media Contemporary Perspectives on Media and Law

The Mechanical Eye: Looking, Seeing, Photographing, Publishing 85

primarily in the context of private property. They also show that, up until that
time, courts consistently refused to recognise that an invasion of privacy had
occurred by the taking and publication of a photograph in circumstances where
the human eye could also look and see. Therefore, potentially invasive types of
conduct – looking, seeing, photographing, publishing – were all considered to
be equivalent from the perspective of legal liability.

TOWARDS A COMMON
LAW RIGHT TO PRIVACY

In order to understand how Anglo-Australian law has changed its attitude
towards photography as a practice highly invasive of privacy, it is necessary to
understand the broader developments in relation to legal protection of privacy
over the last decades. Although courts consistently concluded there was no
enforceable right to privacy in the United Kingdom and Australia, there was
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some dissatisfaction with this state of affairs. In Kaye v Robertson the
English Court of Appeal was confronted with an application for an
interlocutory injunction to restrain the publication of an interview,
accompanied by photographs taken of ’Allo ’Allo star Gorden Kaye,
convalescing in hospital following a motor vehicle accident in which he
sustained brain damage. A reporter and a photographer from the tabloid
newspaper The Sunday Sport had managed to gain entry to Kaye‘s hospital
room, avoiding the security arrangements. There being no enforceable right to
privacy, Kaye was compelled to rely upon an unusual assortment of causes of
action – defamation; battery; passing off; and injurious falsehood – none of
which adequately addressed the right that had really been infringed. The court
was able to grant relief on the basis of injurious falsehood. In the course of
their separate reasons for judgment, all the judges remarked upon the
unsatisfactory level of protection afforded by the common law to privacy but
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found that only the legislature could now remedy this lacuna.
Despite these expressions of dissatisfaction, the legislature did not
introduce an enforceable right to privacy and the courts did not revise their
view as to the position at common law. The impetus for the development of
direct protection of personal privacy in the United Kingdom was the passage

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[1991] FSR 62.
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Kaye v Robertson [1991] FSR 62 at 66 per Glidewell LJ, at 70 per Bingham LJ, at 71 per
Leggatt LJ.