Part 1 – Covert Public Photography

I was recently sent an interesting article by one of my readers who is employed within the UK’s Ministry Of Justice (MOJ) directorate. The article in question was from the excellent magazine Justice Of The Peace and detailed a recent legal of great relevance to the photography world. This was the case of Murray (By his litigation friends) v. Express Newspapers and Another.

The reason young Murray’s case was brought by his litigation friends and not by Murray himself was simple. At the time the case came to court Murray was just over one year old. The case that Murray’s litigation friends brought was against a photographic agency and a photographer. His litigation friends were his parents. They did what any good parents do which was protect their child. I can only commend their apparent motives in pursuing the case. However the implications if they won troubled me greatly.

Avoiding legal jargon the claim against the photographer was this. While the child was just over one year old a photograph was taken of his mother, a well known author, walking alongside his father who was pushing the child in a buggy. The photograph clearly showed the child in full profile. Additionally the photo was taken covertly with a long range telephoto lens in a public place. This meant the claimant and his parents had no knowledge that the picture was taken. It also seems no permission to take the picture was sought.

When the picture appeared in print in a magazine the parents acted. To quote from the Justice of the Peace magazine:

The claimant issued proceedings against the defendants seeking an injunction to restrain further publication of the photograph or similar photograph of him taken without his consent and for damages or an account of profits, breach of confidence, the infringement of his rights to privacy and the misuse of private information resulting from the taking, recording, holding and publication of the photograph.

While I do feel photographing a minor covertly in this manner raises many moral and ethical questions I will not detail them in another article. On this occasion it is the legal issues and their ramifications on photographers that I am interested in.

Though the details of this specific case apply to the child of someone known to the public I feel the implications of the case affect social, documentary and street photographers in the UK significantly. If the claimants could successfully prosecute the case that photography in public is an invasion of privacy and win damages and injunctions where would that leave photography as a whole in this country? As my passion I find this a vexing and worrying question. A question that is of great and pressing concern in our increasingly litigious society.

Imagine a world where public photography is not allowed. In fact imagine if in the past this had been the case. The effect is easier to describe. Henry Cartier Bresson takes his classic picture of the man with umbrella leaping the puddle only to be fined £1000 and given 120 hours community service. Frank Meadow Sutcliffe makes his wonderful sepia prints of fishermen’s children and has an ASBO granted against him banning him from using a camera in a public place!? Bill Brandt’s ‘Girl doing the Lambeth walk’ could land him a stint in chokey I mean good grief we can see children’s ankles! What was he thinking!?

Certainly the history of photography would be a poorer place without these wonderful images and when put in these somewhat dramatised and stark terms I hope you begin to see why the outcome of this case concerned me so much. It is the future of the history of photography that I felt was under threat. All the above hypothetical scenarios are of course a ludicrous stretch of credulity. However an unchecked, unquestioned and ill thought out the legal system is perfectly capable of producing these outcomes. Thankfully it appears our legal system is well thought out with solid checks and balances. As proven in this case and its well reasoned outcome.

The court deliberated that if a child of that age had reasonable expectations of privacy when was that privacy in breach; also in what circumstances they could they expect privacy and what was the impact of the publication of the photograph on the child and parents. Now on ethical grounds I do not feel a newspaper should publish a picture of someone’s child without permission except in cases of strong public interest. I do not feel these criteria existed here. However as I stated it’s the legality not the ethics of this case that I am focusing on.

The court quite rightly decided the child had a right to privacy like any other human being. However they also noted that in public it is not reasonable assume privacy and much less reasonable is to demand a right to privacy. They emphasised this stating that the couple in question could not simply carve out a press free zone in public.

They added that there remained an area of routine activity which when conducted in pubic carried no guarantee of privacy. They also indicated if threatening or intimidating behaviour was used the verdict would have been very different. In this case as the picture was taken using what was deemed to be innocuous conduct there was no problem in this area. The case was judged to have no realistic chance of success.

In summary when in a public place conducting your routine business there is no reasonable expectation of privacy. It is after all by definition a public place. It’s not so hard to figure out even without a fine legal brain. To add my own thoughts, your public persona, that which anyone can see, cannot possibly be private in my opinion. I feel it’s oxymoronic to even think of public privacy!?

This is a good verdict in my opinion. While all cases are taken on their own merits the implications and the reasoning behind this ruling are good both for the hobbyist and professional photographer alike. To me it indicates that photography in a public place when conducted without threats or intimidating behaviour is an entirely honest pastime. To clarify acting reasonably and within the law we are free to carry on doing the photography we love. I think future generations may be grateful for this. I for one feel it would be sad if there were no photographic archive documenting public life in the 21st century for future generations at. No Bresson’s, Evan’s or Brandt’s to give pleasure and inspiration to future generations of photographers.

On a final note I do have sympathy for the parents of baby Murray I think the instinct to shelter their child from the intrusive world of the tabloid media is laudable though I think the interest of greater good was served when the ruling was not in their favour. I see the problem with tabloid press is not to be solved with censorship. It is a problem of supply and demand. If you wish to support the Murray cause don’t buy tabloid junk. Demand better quality journalism.

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In short if you take this as a carte blanches to go around randomly photographing anyone you please understand that any firm hands or your collar or punches to the face you receive are probably exactly what you deserve and that perhaps you entirely missed the point of the article?