The most extensive was a discussion – political in nature – which started with the reported arrest of a number of people who were taking pictures in a public place. Like so many of these debates everyone except me knew exactly what was going on. But let that go by...
Out of that debate there came to me a number of issues that, quite by chance, were echoed in twin articles by Joanne Black in the NZ Listener. I can not link to that article, it is not available online, nor do I have the time and inclination to sit and retype the 100 odd column inches of close Times font that make up the full discussion, quite apart from any copyright considerations.
The most recent NZ case is known as “The Hosking Case”. This is the case that I have referred to in various comments in the past few weeks. Mike Hosking is a tv news commentator and “personality”. He has always been very careful to protect his private life, and since his marriage even more protective of his wife and their relationship. A series of images taken of Hosking’s wife and twins in a shopping centre were offered to the magazine for publication. The only means of preventing publication was to obtain an injunction. There is an excellent summary of the circumstances at the Herald.
In a similar vein, a “police reality show” television programme was present and filming at an accident involving a teenager who was seriously injured in a skateboarding accident. The tv crew filmed extensively for some 15 minutes. At that point they approached a woman (who lived close by and had been responsible for alerting emergency services and then gave first aid) for her consent to using her image in the film for the tv programme. The film and audio taken included her being interviewed by police, which included her giving name and address details. She refused the right to publish. The same camera team were present when the boy’s parents were told about the accident, and when they arrived at the hospital to see him (he was given a 1 in 10 chance of survival, the doctor recorded and shown giving the prognosis, odds that the boy beat).
In both of these instances, the “right to publish” won out. In both cases the “public interest” was deemed to be paramount. The tv example did not go to Court – that is becoming the priviledge of the rich and famous. But we will let that go by for the moment as well...
There is mention of a third instance which “is unlikely to be heard this year”. The producers of the tv programme involved apparently have said that “there can be no expectation of privacy in a car accident on Auckland’s southern motorway”.
So, what is the current law? Briefly –
The media has the right to film, photograph, or report and to publish anything that can be seen from a public place.
The media is excluded specifically from the constraints of the Privacy Act.
The Bill of Rights codifies freedom of expression but not privacy.
Free speech is seen as a “fundamental tenet of democracy”.
There are two instances given of overseas examples.
The first involving Naomi Campbell leaving a Narcotics Anonymous centre went as far as Britain’s House of Lords. In a three - two split, the Lords found “that Campbell had a reasonable expectation of privacy” and that Britain’s “Law of Confidence” (relating to information held) should be extended to protect against such “misuse of private information”.
The second is the report of a case taken by Princess Caroline von Hannover (formerly of Monaco) where it was ruled by the European Court of Human Rights that publication of papparazzi photos of her shopping or playing tennis was a breach of her privacy under Article 8 (protection of personal and family rights, compared with Article 10 which covers freedom of expression). The intrusion was unjustified, as the princess had no official duties and the pictures did not contribute to “any debate of public interest”.
That decision was followed in an action taken by Zeta-Jones and M Douglas against “Hello!” magazine for publishing photos taken of their wedding.
The Court of Appeal (Britain again) held that the Douglas’ claim to privacy was so strong that their initial attempt to prevent publication should have succeeded. Photos were by their nature intrusive, making the viewer a voyeur to an otherwise private scene...By Christine Sheehy as quoted in Listener
So where does this leave the privacy law...
Questions that come to mind for the future include the obvious –
* The present law obviously did not foresee the invention and common use of high-powered lenses. (Personal note – I know what a 900mm lens can do. A good school buddy of mina and I spent a very enjoyable summer taking photos of mates racing sailing dinghies, from the beach. You can get a good ‘head and shoulders’ at 400m, full body shot at 800m. That was 30 years back). Now you can get 2000mm lenses for enough money...
* The present law did not foresee the capability of modern electronics and digital photography. The 10x electronic zoom on a digital camera is potentially the equivalent of the 2000mm lens.
There is also a huge range of circumstances that has not (to my knowledge) been tested in Court at all.
* Photographs taken from aerial devices – over public land but able to “see over the hill”.
* Micro-video and micro-audio surveillance equipment.
* “Camera phones” and “video phones” (is a changing room in a public swimming pool still a “public place”?)
* Reality tv programmes. Interesting one this – we regularly and often see the tragedy and torment of people affected by war on the news – that is acceptable. Apparently showing the arrival of US servicemen’s coffins in the US is not. Is it “right” that a tv programme can use film of a person injured (say in a car accident) being treated for head injuries? Or the family being told by police that their husband/wife/son/daughter had been killed in an accident?
There is also the matter of whose privacy lies within the “public domain”. The Douglas and “Princess” cases referred to give a lead here perhaps. There is one thing – that it would probably be easier for a plebian such as myself to plead an invasion of privacy than it would be for the Mayor of our fair city, or a politician.
Then if we start “binary chopping” on that thread, we get questions such as “What import should be given to distinguishing between public duties and private acts?” In my mind one heck of a lot.
At what point does a private act change from private to “public right to know”. In my opinion when the private act directly impinges upon public position.
I have a feeling too that the “style of presentation” might impinge very strongly upon future law and Court decisions. Sheehy notes briefly that one of the photos of Zeta Jones published in the Hello! magazine ( of the newly wed Mrs Douglas eating a piece of cake) was captioned “Catherine Eater Jones”. I wonder how heavily did that weigh in the Court decision against the magazine.
For myself, images of people that I have taken in public (oppograbs and candids) have interest in portraying or prompting a personal memory.
Would I use such an image in a photographic competition? Oh, wow! I would have to wrestle with my conscience on that. It would depend upon the nature of the image. A person incidental to the main subject of the image – the shopkeeper that my wife is buying from, no problem.
Where the person is the primary image? Publish (as in calender or similar)? Not without written consent that I had the image and that I intended to publish it, and that I would provide a copy of the image prior to publication.
Any objection? No publication.
Going back to the beginning...
If I were standing in Pennsylvania Avenue Washington DC, taking detailed photographs of the security points around a large white residence, I think that I should not be too surprised if I were spoken to in none too polite terms by large angry men carrying a diverse range of weaponry.
As I said, it is great when someone lets you in on the secret...