In the Media

Snap… privacy and 3.5m camera phones

PUBLISHED November 15, 2006

THERE are now more than 33.5 million camera phones in Britain, according to a recent survey by the Mobile Data Association. This is more than just an interesting statistic ? it means that there are 33.5 million people equipped to take a photograph or video of you in a public place and upload it on to the internet for the world to see.

Many magazines and photo agencies pay for mobile phone pictures of celebrities taken by the public. Image-sharing sites such as YouTube and Flikr, which have a user base far in excess of any tabloid newspaper, are full of videos and photographs authored by citizen paparazzi. So what can Joe Public do to stop his 15 minutes of fame becoming 15 minutes of internet shame via an unfortunate camera phone image?

The short answer is very little unless the image shows private information. From a legal perspective, there is no magic about a photograph or video taken on a mobile phone. If the photograph is original, the copyright belongs to the creator just like any other picture taken with a traditional camera. Similarly, the normal principles governing the law of personal privacy also apply. Broadly speaking, if a person takes a photograph of you in a public place there is no legal basis to prevent either the taking of the photograph or the publication of it. But this general principle is subject to some exceptions which are largely dependant upon what the subject of the photograph is doing or whether there is harassment by repeated photography.

The House of Lords held that while Naomi Campbell could not complain about photographs of her ?popping down to the shops for a bottle of milk?, she could succeed in respect of images of her leaving a Narcotics Anonymous meeting. The Campbell case is in apparent conflict with a decision of the European Court of Human Rights (ECHR) over Princess Caroline of Monaco (Von Hannover v Germany). The Princess?s right to a private life was held to be infringed by paparazzi photographs of her in public places including out shopping and cycling in a park. The English courts seem to prefer to follow Campbell rather than Von Hannover.

In June Sir Elton John failed to get an injunction to stop the publication of photographs of him on a public street wearing a baseball cap and a tracksuit. He had just got out of his Rolls-Royce and was going into the front gate of his West London home. Mr Justice Eady refused the injunction, saying that this was akin to him popping out for a pint of milk.

A non-celebrity may have more grounds to complain of an infringement of his or her right of privacy if the image is disseminated more widely than could have been expected. This was one of the reasons for the success of Geoffrey Peck in the European Court. He was captured on CCTV walking in a town centre with a kitchen knife and attempting suicide by cutting his wrists. Stills from footage were released by the local council and published in newspapers and on television.

The ECHR held that disclosure of the footage amounted to a serious interference with his right to respect for his private life. The distribution of the footage meant that his attempted suicide was viewed to an extent that far exceeded the exposure that would have been foreseeable to a person walking in that area.

The Press Complaints Commission code also requires that publications involving grief and shock must be handled sensitively. There may be scope to obtain an injunction if the images depict matters that would attract a reasonable expectation of privacy, such as suicide attempts, serious injuries after an accident, nudity or a visit to the doctor. But unless the image can be said to be infringing a privacy right in some way, there is little that can be done to prevent publication.

Data protection also offers little assistance unless the photograph is ?biographically significant? and more than just a record of a public appearance. The Hong Kong courts ? under a statute very similar to our own ? rejected a data protection claim by a woman who was the victim of long-lens photography in the street. Her photograph was published in an article about fashion sense with the unflattering caption ?Japanese mushroom head?. The court held that data protection was aimed at informational privacy and not a general right to personal privacy.

For those who do receive 15 minutes of shame on the internet at the hands of a citizen paparazzi, it is always worth writing to the site host or service provider requesting that it take down the image. Many will oblige. Of course, the law in this area is developing, so the position may change. But as things stand, the citizen in the public street is fair game for the mobile phone photographer.

The author has written The Law of Photography & Digital Images (Sweet & Maxwell, 2004). She is a barrister at 5RB, London