Page 96 - Courting the Media Contemporary Perspectives on Media and Law

The Mechanical Eye: Looking, Seeing, Photographing, Publishing 87

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or publication of photographs. In his influential dicta in Hellewell v Chief
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Constable of Derbyshire, Laws J suggested that

‗[i]f someone with a telephoto lens were to take from a distance and
with no authority a picture of another engaged in some private act, his
subsequent disclosure of the photograph would, in my judgment, as
surely amount to a breach of confidence as if he had found or stolen a
letter or diary in which the act was recounted and proceeded to publish it.
In such a case, the law would protect what might reasonably be called a
right of privacy, although the name accorded to the cause of action would
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be breach of confidence.‘

There are several points to be made about Laws J‘s dicta. First, as equity
is a conscience-based jurisdiction, the motive of the photographer and any
subsequent publisher, the surreptitious nature of the taking of the photograph
and the lack of consent may all be relevant to any liability, defences and
remedies for breach of confidence. This is in marked contrast to the approach
of common law causes of action, such as trespass to land and private nuisance,
where such considerations are largely irrelevant. Secondly, Laws J accepted
that an ‗act‘ may be private, even if it occurs where it might be observed and
photographed. Consequently, his Lordship did not accept that simply because
an act is capable of being viewed that it is permissible to photograph it and to
publish it. This marks a departure from the nexus of privacy and private
property and the general ―right to photograph‖. Thirdly, and related to this,
Laws J importantly acknowledged the impact of technology – the camera can
be used to see more than the human eye. Therefore, his Lordship suggested
that different legal consequences should attach to the taking and the disclosure
of a photograph. Laws J did not treat the camera as equivalent to the human
eye and does not elide acts of looking, seeing, photographing and publishing.
It will become apparent that Laws J‘s dicta have been particularly influential
in the subsequent development of a substantial jurisprudence in the United
Kingdom on privacy and photography.
Although there is no general, enforceable right to privacy in Australian
law, courts, legislatures and law reform bodies have been actively considering

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One of the problematic features of using breach of confidence as a means of protecting
photographs from disclosure or publication is that it requires photographs to be treated as a
type of ‗information‘. The difficulties associated with this proposition are too complex to be
discussed adequately in this article.
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[1995] 1 WLR 804.
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Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 at 807 per Laws J.