Outside the marginals

a commentary on the politics that followed the UK 2010 & 2015 elections

Expectations of Privacy

The Italian Press (or to be more exact the Bunga-bunga man’s press) is to publish photographs of a pregnant bikini clad women walking on a beach. (BBC News website 13 February 2013: #### photos: Chi says photos ‘not scandalous’)

This again raises questions as to what is privacy and the nature of our modern society.

Privacy

There are two conflicting views of this particular situation.  The publishers say:

… the photographs can hardly be considered an invasion of privacy when the subjects are public figures in a public place, in the open air; specifically on a beach surrounded by other bathers.

The BBC Correspondent speculates that were the public figures to complain:

… the argument would be that on a private holiday, on a private beach, on a private island, Y and X are entitled to a reasonable expectation of privacy.

These two statements are contradictory about whether the place (a beach in Mustique) is private.  The fact that they are public figures puts a six-figure value on these photographs.  But does that change the fundamental questions?

How “public” a figure do you have to be before apparently you lose rights to privacy?  What rights does anyone have if they are in a public place?

Public Figures and the right to privacy.  Guessing that the press will say that anyone “in the public eye” is a public figure, it is probable that some may claim that anyone who appears in the news is fair game.  So does the Food Standards Agency spokeswoman who appeared on the lunchtime news lose any rights not to have holiday pictures of her in a bikini published in a magazine?  What about Chris Huhne’s (adult) children?  Or a member of the English Women’s cricket team? The press may attempt to propose some criteria:

  • Are they photogenic? If not they probably won’t help sales – unless portrayed as “freakish”.
  • Do the public want to see more of the person concerned? The old confusion of “public interest” and “of interest to the public”.
  • Do they court publicity?

Courting publicity could be said to render a (mentally capable) person liable to being covered – even if some of that coverage is unwelcome.  It is said you cannot “pick and choose” – the “live by the sword argument”.  I dislike the idea of “losing your right to privacy”; being a foolish attention-seeker is not a sufficient justification – I think you have to be a “proper wrong ‘un” for the press to be able to suggest that there is a “public interest” reason for invading someone’s privacy.  Even then it is hard to argue that it is necessary to publish pictures when exposing, for instance, the fact that an army officer plays strip billiards in Las Vegas.  In this example, the “public interest” surely is in the story, the pictures are merely salacious.  The press may feel that they are now so distrusted that the picture is required to “prove” the story – but if we distrust the press to that extent we may also suspect that the picture is “photo-shopped”.

In respect of the “cannot pick and choose” argument, the press seems to forget that they can pick and choose whether to cover a public figure going about their public duties.  Are they really claiming that this couple walked down a beach in Mustique to court publicity and make it more likely that the press will turn up to their normal ribbon-cutting and feel-good generating duties?  Whether these public duties are covered is surely down to the press deciding that the activity is news-worthy.

Rights in a Public Place. The general view seems to be that anyone in public is “fair game”.  However, I suspect that most of us would want some say if our images were to be published.  If you were walking down a beach in a swimsuit would you want a photograph of yourself published in a holiday brochure?  Would it matter if the tour operator concerned was not the one you were with?  Would it matter if the person you were with was not your spouse?  Would it matter if on that beach you were (legally) naked?  I suspect most people think they should be entitled to a say.

What rights do we have to look at pictures of people (no matter how public the figures) in a public place?  The argument goes that if you are in public there is implied consent to being seen.  This may be so but taking a photograph goes beyond “being seen”.  Seeing someone in a swimsuit kissing their partner on a beach is the matter of a moment (the image in your eye); taking a photograph of that moment and reproducing it removes the people from that moment and “the image” is seen in a different context.  Should people be able to withhold consent to their image being seen outside the moment – and should that be the default?

That would imply that photographers should get consents from anyone in their photographs.  This would make sports photography – where the crowd is in the background – unfeasible.  It would also mean taking family photographs in a public place – where others will be in the background – is impossible.  So how do you define a criterion which is workable and yet protects people from being seen “outside the moment” without their consent? Or do you throw in the towel and say if in a public place anything goes?

In the Internet age a “for publication” criterion will not work because the definition of “publication” is now blurred beyond control.  It used to mean publishing in a book, magazine or brochure; now it could mean on flickr, on facebook or on a personal website.  Once a digital photograph is taken it is next to impossible to control its distribution in whole, in part, or as part of a mash-up.  There is probably nothing that can be done about “accidental” inclusion in a photograph, but if there are “main subjects” in a photograph, surely it is possible to give them some sort of say in whether they want to be in the photograph and what is to be done with the photograph once taken?

Better but not good enough.  Leaving aside the ambiguity about “main subjects” (not helpful if the law may be involved), even requiring the consent of the main subjects would be an unacceptable constraint on news photography or even personal memento photography. Are you going to ask Owen Farrell for his permission to publish a photograph of him slotting a penalty over for England against Ireland?  Are you going to ask Her Majesty for permission to publish a picture of her opening the Olympic Games?  Are you going to risk asking Chris Huhne for permission to publish a photo of him going into court to be sentenced – you may find that you cannot access him?  In all the above examples it is possible to argue that since they are on “official business”, we might have a refined situation where we might argue for “implied consent”.  (Any of the above walking along a holiday beach would not be official business.)

Modern Society

The acceptability of the above is probably a reflection of the nature of our modern society. We seem to have an unhealthy relationship with fame – particularly celebrity.  In the past we may have been a pest and asked for an autograph, now we stick a phone camera in the face of anyone famous.  The resulting photos (or even videos) are usually banal and so common as to have no “collectible value” (unlike a good old-fashioned autograph collection).  They are however easily duplicated, morphed (see the Galaxy Note II advert) and distributed via photo sharing sites (like flickr), video-sharing sites (like YouTube) and social media (like facebook and twitter).  So why the need to take the photos and why the need to look at, for instance, relatively banal photos of famous people on holiday?

Why do we take photographs at all?  If we think about taking a photograph of a landscape (to take human privacy out of the issue), I think there are three main reasons:

  • To record a personal memory.  The personal element is what makes your own photograph better than a postcard of the scene.
  • To create a specific resource.  For some reason (possibly commercial) we want an image of that particular landscape to which we own the copyright.
  • As an artistic expression – to create an image that excites certain emotions.

All these reasons are valid reasons for wanting to take a photograph of a person – but are they justification for an intrusion on that person’s privacy?

Taking an amateur picture of a “celeb” (or of you “with a celeb”) seems to be motivated by the personal memory reason – to “prove that you were there” beside “them”.  The photo, particularly if it includes you, has to be better than a postcard of the “celeb”?  If the celeb is at a promotional event they will tolerate, possibly even welcome, the photographer.  At other times it is probably an intrusion and the photographer is arguably being selfish fired by a feeling that they are entitled to be alongside the celeb and that for the celeb to resent this is in some way elitist.

The professional photographer is probably reliant on the second reason – producing an image that he or his organisation) owns and can use for commercial purposes.  The value of the photograph is dependent on what someone will pay for it – usually in terms of additional sales of the publication to which the photograph is sold.  The papers that contain salacious or even just “candid” shots of celebrities and famous people sell and this gives the photographs a value – irrespective of the feelings of the subjects.

Why do people apparently want to see such pictures?  Is it that in this fame obsessed world we want the contradictory messages that (1) we can (despite any lack of talent) achieve the lifestyle and that (2) the “celebs” are as human as the rest of us with human failings.  Thus we want to see pictures of the romantic walk along the beach and the falling over in the street outside a night club – and we will buy publications containing such photographs.

Are more equal societies less likely to want to see such pictures – is the desire to see them more a matter of mild curiosity than vicarious living?  If so you would hope that there would be less of a market for the intrusive type of picture.

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