Page 98 - Courting the Media Contemporary Perspectives on Media and Law

The Mechanical Eye: Looking, Seeing, Photographing, Publishing 89

Direct privacy protection is in a state of flux in Australia. It is unclear how
privacy protection will develop but, given the level of interest from a range of
agencies, it seems likely some progress will occur.
The process of severing the link between privacy and private property and
reconstituting privacy as a value attached to the person is a relatively recent
development in the United Kingdom and Australia. However, this process is
more well-established in the United States. It can be traced back to the highly
influential article by Samuel D. Warren and Louis D. Brandeis, ‗The Right to
Privacy‘ [1890]. Their significant contribution to the development of privacy
protection was to undertake an extensive review of the available common law
and equitable causes of action and to discern in them an existing right to
privacy, being ‗the right to be let alone‘ [Warren & Brandeis, 1890]. So
described, the right to privacy was not an incident of the possession of private
property but a generalised right common to all persons. Warren and Brandeis
make clear that their impetus for thinking and writing about privacy was the
capacity of photographs to intrude upon privacy. They evocatively state that:

‗[i]nstantaneous photographs and newspaper enterprise have invaded
the sacred precincts of private and domestic life; and numerous
mechanical devices threaten to make good the prediction that ―what is
whispered in the closet shall be proclaimed from the house-tops‖.‘
[Warren & Brandeis, 1890]

Thus, the consistent theme unifying the emergence of direct privacy
protection, in their varying degrees, in the United States, the United Kingdom
and Australia appears to be the recognition that privacy may be a right
valuable to the individual, without any necessary attachment to the possession
of private property.

PHOTOGRAPHS AS HIGHLY
INTRUSIVE UPON PRIVACY

As a result of this larger context in which direct privacy protection is
developing, particularly in the United Kingdom, there have been important
changes in the treatment of photography as a practice intrusive upon personal
privacy. If privacy is to be properly protected as a human right, the general
―right to photograph‖ is insufficiently sensitive to claims of privacy outside
rights of property and needs to be revisited. This has seemingly occurred in the