The Paparazzi And The Satellites – Focus On The Law Of Intrusive Photography

THE old adage that a picture is worth a thousand words is as true of detailed satellite images as it is of paparazzi photographs.

Pictures are packed with information, and technological advances only fuel the demand for ever more intrusive shots that are either in the public interest, or at least of interest to the public.

If you want to discover Manchester United’s match strategy, what better than to hire a light aircraft and take aerial pictures of its training sessions from 1,500ft, as a mystery rival allegedly did this year.

It’s even been suggested that aerial or satellite reconnaissance should be used in the search for missing toddler Madeleine McCann.

The law has been scrambling to keep pace with modern realities. The legal position for traditional press photography has started to take shape, largely due to litigation involving celebrities. But for satellite imaging, it still lacks focus.

Press photography

Numerous celebrity claimants have argued before courts in Europe that press photographs have infringed their right to respect for private and family life, under Article 8 of the European Convention of Human Rights, claiming privacy should take precedence over publishers’ countervailing right to freedom of expression under Article 10.

In the UK, judges have used the law of confidence, and a new cause of action called ‘misuse of private information’, to ensure people have enforceable Article 8 privacy rights. It means intrusive press photography often leads to litigation.

In 2004, photographer Nick Stern hired a helicopter and took aerial pictures of David and Victoria Beckham’s house following reports they were building a large fort in the grounds for their children.

After the photos were published in the News of the World, Stern’s company received a writ claiming damages for infringement of privacy and harassment.

The case was eventually settled on terms that Stern found favourable, but not before the potential legal risks of such photography had become clear.

Lawyers in UK and Europe now talk of a ‘private zone’ in which people have a legitimate expectation of privacy. Unauthorised photographs revealing personal or lifestyle information from within that zone may be actionable.

Where the limits of the zone should be drawn is often arguable, depending on the facts.

Take the well known photographs of supermodel Naomi Campbell leaving a London meeting of Narcotics Anonymous, published by the Daily Mirror. Those were held to have overstepped the privacy line, and Campbell was awarded £3,000 in damages.

However, Lady Hale, one of the judges deciding the case in the House of Lords, gave an example that an unauthorised photograph showing the supermodel as she “pops out to the shops for a bottle of milk” would not be actionable. She said there would be “nothing essentially private about that information”, nor could it be expected to damage Campbell’s private life.

The European Court of Human Rights (ECtHR) took a more restrictive approach in a privacy claim brought by Princess Caroline of Monaco (the ‘Von Hannover’ case).

Paparazzi photographs of the Princess and her children had been published in German magazines, and she was dissatisfied by the privacy protection afforded by Germany’s courts.

Some of the photographs showed the Princess and her children engaged in sporting and other family activities. Others showed her in a secluded part of a restaurant with a male friend, shopping in a market, and with her husband on holiday, visiting a horse show, and cycling.

The German courts only upheld her privacy claim in relation to the shots of the sporting and family activities, and the restaurant photograph. On appeal, however, the ECtHR decided publication of images of her shopping, riding, and cycling had all violated her Article 8 privacy rights.

The ECtHR was influenced by what it viewed as the weak public interest in such photographs, as well as the fact that the Princess was often harassed by photographers.

The court said: “The present case does not concern the dissemination of ‘ideas’, but of images containing very personal or even intimate ‘information’ about an individual.”

It added: “The court considers that the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest.”

The Von Hannover judgment, in 2004, set a benchmark. At a stroke, privacy became a major headache for photographers and publishers across Europe.

But subsequent decisions by domestic courts have sometimes distinguished the case on its particular facts. It can be difficult to predict which photographs courts will consider innocuous or unlawful.

In a privacy claim brought in the High Court in London in 2005, folk-singer Loreena McKennitt won £5,000 damages after a former friend revealed private details of her home and lifestyle in a book. Commentators saw it as a strongly pro-privacy ruling, with implications both for intrusive editorial text and photography.

The judge said: “To describe a person’s home, the décor, the layout, the state of cleanliness, or how the occupiers behave inside it, is generally regarded as unacceptable. To convey such details, without permission, to the general public is almost as objectionable as spying into the home with a long distance lens and publishing the resulting photographs.”

On the other hand, in 2006 the same judge refused to grant pop star Sir Elton John an injunction to prevent publication of an unauthorised photograph of him in the street, dressed in a tracksuit and baseball cap. He said it was a “popping out for a pint of milk” type of case.

The latest case, in August this year, involved a privacy claim by Harry Potter author JK Rowling after a covert long-lens photograph was published showing her infant son in a buggy in a public street in Edinburgh.

She claimed it was squarely a Princess Caroline type of privacy infringement, but a High Court judge in London threw out the claim, saying: “If a simple walk down the street qualifies for protection then it is difficult to see what would not.”

It was inevitable, said the judge, that the boundaries of what any individual can reasonably expect to remain confidential or private are necessarily influenced by the fact that we live in an open society with a free press. Rowling was reportedly planning an appeal.

That’s a sketch – leaving aside the question of data protection which is beyond the scope of this article – of how courts have grappled with press photography.

Satellite imaging

The broader question of how much privacy people are entitled to against intrusive aerial or satellite imaging remains somewhat untested. Here, it’s not just privacy that’s an issue. Security and terrorism are added concerns.

Various companies operate satellites providing high-resolution images of geographical locations, urban installations, and people going about their everyday lives. Perhaps because of its popularity, Google’s detailed images have attracted particular comment.

Critics say its Google Earth and Google Map services give unacceptably detailed views of airports, fuel depots and other possible terrorist targets.

There were calls earlier this year for the company to blur images of potential targets after an Islamist terror cell in USA allegedly used Google images of airport infrastructure at John F. Kennedy International Airport to plot an attack.
The company also received a warning from Canadian privacy regulators about street-level photography that it is adding to its mapping service.
Google Street View, currently only available for some cities, creates a virtual street-level image from a sequence of urban photographs. The service has been criticised for its potential to invade privacy. Images are detailed enough to show vehicle registration plates and people’s faces.
In coverage, the company has stressed it takes privacy seriously and that security concerns may be addressed primarily by the companies and government agencies that operate the satellites and distribute the images that Google uses.
It’s also noteworthy that some military bases, power stations and other potential targets are already blurred on Google Maps, having been previously censored by satellite controllers. Governments and other satellite operators may also exercise ‘shutter control’ by closing down the imaging when a satellite passes over a sensitive site. And some publicly available satellite images are out of date, which arguably reduces intrusiveness.
The big picture is that photography raises fundamental questions about privacy and security, and whilst courts have begun to set the limits of lawful press photography, it remains to be seen whether claimants will demand they do the same for intrusive satellite imaging.

Published 05/10/2007. The author of this article is Nigel Hanson