Air Crash Media: Photography, Privacy and Grief – Amber Melville-Brown

Car crash TV is defined in the Urban Dictionary as ‘any TV programme that, like a recent car crash in the street, you know you shouldn’t watch, you know you’ll regret looking, but you just can’t help yourself’.

With a spate of disasters over recent months, photographed and reported on in detail in the media, it took on its literal meaning. But if we know we shouldn’t watch, do we know that we shouldn’t photograph?

This week the Shoreham air show in West Sussex was witness to an horrific crash of a 1950’s Hawker Hunter jet which smashed in flames onto the A27 dual carriageway, killing at least 11 people. Tony Kemp MBE, a senior nurse working with the British Red Cross Association of Immediate Care and first on the scene, spoke on the BBC Radio 4 Today programme on 26 August. He said that taking photographs at the aftermath of such events these days is ‘second nature’ and that those who witnessed the awful event were as much victims as anyone else. But this was a softer approach than that reported in, for example, the Nursing Times two days before, where he described photography of this nature as ‘a modern curse’, issuing this plea: ‘I would ask that individuals who have such photos and videos consider very carefully the ramifications of sharing these images with anyone, particularly on social media’.

But where the ramifications are serious invasions of privacy and a potentially unjustified intrusion into grief and shock, what protections are there for the victims of such events?

As long ago as 2003, our domestic law was found wanting by the European Court of Human Rights in the case of Mr Peck who, suffering with depression and walking down Brentwood High Street with a knife in his hand, was caught on Brentwood Council’s new CCTV. The council called the police and after a brief period of detention under the Mental Health Act, and assistance from medical professionals, he was released without charge.

However, keen to advertise its new CCTV the council issued a press release with unpixillated stills from the cameras, boasting ‘Defused – the partnership between CCTV and the police prevents a potentially dangerous situation‘. When this was followed by local TV, Mr Peck applied for a judicial review of the council’s decision to release the footage but this was refused, as was his request for leave to appeal to the Court of Appeal. He appealed to the European Court which found that the footage had been seen to an extent that far exceeded any exposure to a passer-by that could have been expected and his Article 8 rights had been seriously interfered with as a result.

It is the protection of our right to respect for our private and family lives encapsulated in Article 8 of the European Convention that should prevent or restrict the use of images of this nature, alongside the codes of conduct to which much of the media adheres. Nevertheless, the court found in Peck that an image has ‘often a much more immediate and powerful effect than the print media’; it’s no surprise therefore, that being more immediate and powerful, it sells more copies and makes more money. As a result, the Article 10 freedom of expression boundaries are pushed by the press in a competitive market place. Where the balance between Article 8 and 10 will be found to lie in any particular circumstance will depend on the facts, who the victim is or was, where they were, the circumstances, the newsworthiness and so on. Ultimately, it will be a matter for the courts, for those with the stomach and the wherewithal to take the matter to court, to decide.

The family of the well-known reality TV star Jade Goody had the stomach for the fight over pictures of the late Big Brother star’s funeral. In 2009, they won a £35,000 damages settlement from the photo agency Newspics and MGN who published photographs of the funeral in the People newspaper, including an arial shot of the family gathered at the burial. In life, Jade was all over the press and, unlike many celebrities, she usually made time for snappers to get a least a couple of shots and for them then to allow her to get on with her everyday life. At her death, the defendants accepted that the images were in breach of the family’s reasonable expectation of privacy, and apologised accordingly.

The former Press Complaints Commission (PCC) code, and the current IPSO code to which the major media titles – save for The Guardian, the FT and the Independent – have signed up, provide guidance short of litigation on invasions of privacy and intrusion into grief and shock. Clause 5 of the IPSO code, sets out: ‘In cases involving personal grief or shock, enquiries and approaches must be made with sympathy and discretion and publication handled sensitively. This should not restrict the right to report legal proceedings, such as inquests. When reporting suicide, care should be taken to avoid excessive detail about the method used.’ The second part of the clause is subject to the public interest caveat and appears, in fact, to be less for the protection of privacy of the individual concerned, but more for the prevention of copycat events.

In 2006, the now defunct PCC dismissed a complaint over the publication of photographs a woman jumping to her death from a building. I can distinctly remember the image, as it caught her mid-air from a fourth floor window of a hotel, leaving no viewer in any doubt as to what happened next, in spine-chilling reality.  The PCC regretted that the publication had offended and upset readers, but decided it did not breach Clause 5 of its code. The PCC argued that “had the newspapers made light of the incident, included unnecessarily explicit details or presented the photographs in a gratuitously graphic manner, there would have been a breach of the code. However, in the commission’s view, the newspapers had not sought to trivialise or sensationalise the death of Ms Ward in this way. There was no breach of the code as a result.” It is hard to reconcile this with Peck.

I felt a similar unease as I did on seeing this living lady mid-air on the way to her inevitable death as I did seeing the last moments of the life of Katherine Chappell, in a photograph taken by park visitors in the car behind hers. The image showed a lioness on hind legs with paws up against the – open – window of Ms Chappell’s car in a Johannesburg safari camp, moments before we learn, the beast lunged back in mauling her to death. The image showed nothing grotesque or invasive in itself, just an unusual shot of a lion at a car window, presumably why the passengers in the car behind took it. But the very thought of what happened next, so specifically forecast by the image of the moment before, made my blood run cold.

In March 2015, IPSO set out that Clause 5 was ‘designed to protect victims and their families from unwanted journalistic intrusion and insensitivity when they are at their most vulnerable’. It was therefore unable to find in favour of Laura Kiely who complained about the use by the Daily Mail of a photograph of her husband at their wedding. The image showed her hands, part of her dress, her flowers and her veil, and she said it would identify her to anyone who knew her (presumably the groom would too). Nothing to worry about, surely? But she complained because the image was used to illustrate a story about her husband’s imprisonment for sex with an underage girl, events from which she said that she had tried to distance herself. The paper took the picture down as a gesture of goodwill, but said in its defence that it had taken care not to name or identify her although the wedding was a public affair and there was public interest in the story. IPSO found that this ‘was not a case of personal shock such as to engage the terms of Clause 5‘.

By contrast, in March this year the Telegraph was censored by IPSO for a breach of the Code for having published a picture of a school girl – albeit with her face pixillated – as she lay on the pavement, having been injured in a road accident. Here, the newspaper had not been able to contact her parents, but had received confirmation from the school that the emergencies services had been called to assist. An important factor is that the girl was 16 and the Code makes specific provision for children and images concerning their welfare while at school.

Teenagers were also the subject of unwelcome photographs in the aftermath of this summer’s Alton Towers rollercoaster crash. One young man who broke both his knees and whose girlfriend had her leg amputated as a result of the accident has spoken to the media of his shock at seeing people taking photos. Joe Pugh told the breakfast TV show, This Morning that he screamed at people to stop taking photos. ‘It’s the day and age we’re living in – people just take pictures – but you don’t want them taken,’ he said.

And that’s the trouble. While each of us would probably abhor the taking and publication without our consent of intimate moments of injury or death, grief or shock – of us or our loved ones – when they are taken and published in a newspaper, or on social media, we are not in control of those images. What’s more, where Ofcom reports that 93% of adults personally own or use a mobile phone in the UK, and where everyone with a phone is also a potential photographer, that is a lot of photographers, and a lot of photographs.

As with all such things-media, a balance has to be struck. Images of air crashes, fun fair disasters and road accidents can form part of history, a public interest story, and they may hold clues as to how an event occurred and how we can all avoid them; for example, the simple act of keeping a car window closed is brought dramatically to life by the death of a victim in a safari camp. But these images may also be deeply invasive and traumatic for us, our friends and our family, even if in fact, they show little.

There is no easy answer. If I were to ask you whether an image of a naked nine year old girl, screaming in terror, was an unjustified infringement of her private life and an unnecessary invasion into grief and shock, your gut instinct might be to agree.  But few who have seen the 1972 photograph by Associated Newspaper photographer Nick Ut of Phan Thi Kim Phuc running down the street in Vietnam with thick, black smoke behind her and soldiers toting guns at her side, would argue that this was not a justified invasion, truly depicting the horrors of war.

Amber Melville-Brown is Head of Media & Reputation Management at Withers LLP.