When is being in public, private? – David Rolph

29 02 2012

A person’s expectation of privacy in a public place has been given new focus in a recent European Court of Human Rights judgment involving Princess Caroline of Monaco. Media law academic Dr David Rolph looks at the decision, and the implications for Australia The recent decision of the European Court of Human Rights in Von Hannover v Germany (No 2) has raised the issue of expectations of privacy in public places.

Princess Caroline of Monaco went back to the European Court of Human Rights to complain about the German courts’ refusal to grant an injunction against the further publication of photographs of her by German magazines.

The photographs in question were taken in public and showed Princess Caroline on a skiing holiday in St Moritz and Zurs am Alberg.  From a common lawyer’s point of view, the idea that there can be an expectation of privacy in a public place is a challenging one.

The common law has consistently taken the view that there was no general right to privacy. A person could have no expectation of privacy when in a public place or even when observable from a public place. Merely looking onto someone else’s property did not constitute a wrong.

As Lord Chief Justice Camden evocatively stated in Entick v Carrington (1765) 19 State Trials 1030, “the eye cannot by the laws of England be guilty of a trespass”.

It was not just the human eye that could avoid legal liability for intruding upon a person’s privacy.  There is a consistent line of authority, culminating with Raciti v Hughes (1995) 7 BPR 14,837, to the effect that “as a general rule what one can see one can photograph without it being actionable”.

English law began to change on this issue in the mid-1990s. In Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804, Mr Justice Laws suggested that:

“If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the photograph would, in my judgment, as surely amount to a breach of confidence as if he had found or stolen a letter or diary in which the act was recounted and proceeded to publish it.

In such a case, the law would protect what might reasonably be called a right to privacy, although the name accorded to the cause of action would be breach of confidence.”

The major impetus for the change in the United Kingdom, though, has obviously been the introduction of the Human Rights Act 1998 (UK), which brought the European Convention on Human Rights into domestic law.

Giving effect to the right to a private life under Article 8 of the ECHR has required courts in that country to revise the common law’s established position about expectations of privacy in public places and the ability of individuals to complain about being photographed.

As a consequence, there is now a line of authority that treats photographs as being more intrusive than mere verbal accounts.

Special considerations are said to attach to photographs as a form of invasion of privacy.

Moreover, there are now cases in which individuals have objected to a photograph being published of them when the photograph was taken of them in a public place.

Thus, the English Court of Appeal accepted that it was arguable that J.K. Rowling’s son, being published along a street in a stroller, had a reasonable expectation of privacy.

Unfortunately, no such luck for Sir Elton John (pic) snapped putting the rubbish out.

The impetus for the change in United Kingdom law is clear. The implications of the change are more subtle.

The developments in the UK on privacy in public places are underpinned by an important but implicit change in legal thinking.

Traditionally, the common law’s concept of privacy was inextricably linked to private property. In his 2006 Blackstone Lecture, Sir Stephen Sedley made the point that:

“The protection of privacy was largely left by the common law to the law of trespass … If you had no property you have no privacy.”

Thus, if a person is in public or is observable from a public place, he or she has no right to privacy.

But once individuals are given a general right to privacy, the focus shifts from the place to the person.

No longer is it the case that the place where an individual happens to be is determinative of whether he or she has an expectation of privacy.

The individual is not automatically divested of a right to privacy merely because he or she happens to be in public.

As the European Court of Human Rights observes in Von Hannover v Germany (No 2):

“There is thus a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life”.

This approach to privacy has already found a receptive audience in Australia.

The Australian Communications and Media Authority, in its controversial ruling on Channel Seven’s “outing” of former NSW Labor Minister, David Campbell, found that simply because Campbell’s entry and exit to the sex-on-premises venue was observable from a public place did not mean that he had no expectation of privacy.

Similarly, the Australian Press Council, in a July 2010 adjudication, upheld a complaint by a woman who objected to a local newspaper’s publication of photographs of her at her front door and in her garden.

She was only visible from a public place because a journalist seeking to obtain a comment from her drew her there.

The APC appeared to accept that this was an intrusion upon her privacy.

Given the nascent state of a general right to privacy in Australian law, it is unsurprising that Australian courts and legislatures have not yet grappled with the issue of expectations of privacy in public places.

It will be interesting to see how they deal with such claims. Already though, media regulators in Australia have proven themselves to be receptive to such arguments.

Dr David Rolph lectures in media law at the University of Sydney Law School and is the editor of the Sydney Law Review. He is the author of “Reputation, Celebrity and Defamation Law” (Ashgate 2008)His articles  include “Looking Again at Photographs and Privacy: Theoretical Perspectives on Law’s Treatment of Photographs as Invasions of Privacy” andThe Mechanical Eye” and “Looking Again at Photographs”.

This post originally appeared in the Gazette of Law and Journalism – Australia’s leading online media law journal.


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5 03 2012
Law and Media Round Up – 5 March 2012 « Inforrm's Blog

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