Photographs, Celebrities and Article 8: Is the UK adequately protecting privacy?
The present discussion seeks to test the adequacy of the nature and level of protection afforded by the UK to the right to privacy under Article 8 of the European Convention on Human Rights (ECHR), particularly with respect to whether such protection is enough for celebrities seeking to prevent unwanted publication of their photographs. This adequacy shall be tested by assessing whether courts in the UK are developing and interpreting the law in a manner that is consistent with the principles espoused by the European Court of Human Rights (ECtHR) that are said to encapsulate the essence of Article 8. With the enactment of the Human Rights Act (HRA) 1998, courts must, inter alia, take into account the rulings of the ECtHR when interpreting the meaning and scope of rights, even though the “binding-ness” of the term “take into account” is debatable1. There will be additional inquiry into whether the ECtHR itself has in fact developed a sustainable approach to the matter. It shall be argued that while the UK courts have been creative, there is room for the development of a more nuanced approach that nevertheless promotes consistency and predictability of outcome for both the photographer and the “photographed”; and that perhaps some direct legislation striking the heart of the issue is the best solution.
The ECtHR, photographs and Article 8
While generally adopting a hands-off approach in most cases that involve a margin of appreciation or a justificatory defence for limiting rights, the ECtHR has in fact postulated a number of principles that capture the essence of the privacy-related interests contained in Article 8. It is hardly surprising that the right to privacy has generally witnessed an explosive growth over the years with the ECtHR being invited to make more and more pronouncements over the right’s scope and the instances in which it can be limited2. The phrasing of Article 8 does beg the question whether the publications – or indeed the very taking – of photographs in public were meant to constitute a breach. For these purposes, it is the right to respect for “private and family life” that is relevant. When alleging that taking photographs is a breach under Article 8, the general argument is that privacy-related interests include not only the desirability of protecting “private information” but also extend to protecting one’s person from “unwanted access”3, thereby extending to photographs taken in public places.
In Von Hannover v Germany, the ECtHR for the first time held that the right to respect for private life also extends to activities that take place in public, thereby engaging Article 84. The ECtHR also reiterated here one of the cardinal principles that govern the area: “...private life, in the Court's view, includes a person's physical and psychological integrity; the guarantee afforded by Art.8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life”.”5
The ECtHR has in fact gone one step further after Von Hannover, and ruled in Reklos v Greece that Article 8 is engaged even when the act under question is the taking of a photograph (as opposed to its publication or dissemination)6. The most crucial aspect of this ruling was where the Court stated unequivocally about the fundamental importance of one’s image to one’s personal development and the need generated by this importance for one to be able to control not only the publication but also the very taking of photographs7. However, it is not at all clear whether the ECtHR intended for this ruling to serve as a “blanket approach” to all Article 8 cases involving photographs, and neither is it clear that consent must always be sought before one proceeds to take a photograph; to this extent, the ECtHR’s approach has been heavily criticized8. Moreover, the ruling in Reklos does not provide definitive guidance as to the position of celebrities, since the Court left open the possibility of a “public and newsworthy” figure being photographed without knowledge or consent9. What can and should however be taken as useful guidelines are the general principles about the underlying privacy-related interests that the ECtHR has relied upon in both Von Hannover and Reklos.
The UK’s approach
In terms of protecting the privacy of celebrities against other private parties (as opposed to the state), there is virtually no substantial primary legislation at present in the UK. Aggrieved parties thus sue primarily under tort (breach of confidence) and it is here that the courts have substantially modified the nature of the tort and imported the requirements of Article 8. The leading case in this respect is Campbell v MGN Ltd, where the House of Lords laid down its own principles that shape and give meaning to the right to privacy10. In perhaps one the most important passages on the subject, Lord Hoffman highlighted how the HRA 1998 has transformed the legal nature of privacy claims in the UK: “Instead of the cause of action being based upon the duty of good faith applicable to confidential personal information and trade secrets alike, it focuses upon the protection of human autonomy and dignity – the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people”11.
This infusion of Article 8 principles into the action in tort is viewed as an example of “indirect horizontal effect” that has received positive responses from many academics in the field12. What is also clear from Campbell is that the question of whether or not something is “private” depends by and large on whether the person in question had a “reasonable expectation” of privacy or confidentiality13. Another general trend that is quite visible in the UK jurisprudence is the higher level of importance attached to photographs and their tendency to invade on privacy. In a nutshell, courts have held that the publication of a photograph may be actionable even though the publication a description of the same content may not14.
It is also noteworthy that English courts have not yet adopted the approach taken by the ECtHR in Reklos v Greece, insofar as the mere taking of photographs has not been seen as involving Article 8 issues per se. The focus of the courts in the UK has largely been on the publication of such photographs. There is however some indication in Campbell of instances where photography without publication may indeed be actionable; this would nonetheless require proof of a reasonable expectation of privacy on the claimant’s part15. It is submitted that even though this is a position that is not entirely consistent with that of the ECtHR, it is justifiable. It has in fact been argued that the ECtHR in Reklos left many questions unanswered because of which innocent activities such as “artistic photography” might be seen as a breach of privacy simply because there is no express consent16.
The “real” problem
While both the ECtHR and the UK have expressed commitment to more or less the same principles as being foundational to Article 8, there is considerable divergence in the methods with which both attempt to safeguard those principles. The UK courts have been criticized for the “indirect horizontal effect” with which they have tried to bring an existing action in line with Article 8 instead of developing a new mechanism17. On the other hand, the ECtHR has been criticized for leaving too many questions on the extent of “privacy in public” unanswered18. It is respectfully submitted that the latter deserves more attention, and that in this respect, the English courts have developed a useful preliminary test i.e. requiring a “reasonable expectation of privacy”. An elaboration of this test may also cover the situations of celebrities whose position was left unclear after Reklos.
The “real” problem in this respect is how to elaborate the “reasonable expectation” test. To transpose this into the celebrity context, the test is stated as follows: a celebrity who wishes to prevent publication of his/her photographs needs to show that s/he had a “reasonable expectation of privacy”. Given the very public nature of their professions, this test will be difficult, but crucially, not impossible for celebrities to satisfy. Moreham has developed a very useful approach by tracing developments in both domestic case law within the UK and the ECtHR19. She identifies four broad factors that can have (and have had) a bearing on the issue, namely (i) location; (ii) the nature of the claimant’s activity; (iii) the way in which the image was obtained; and (iv) the extent to which the publication focused on the claimant20.
All four factors are of immense importance to the celebrity context. In particular, the way of obtaining the image can be decisive. In Campbell itself, it was acknowledged that the “unconscionable manner” in which pictures were obtained may be enough to constitute a breach of privacy (in that case “confidence”) per se. Most cases with celebrities involve some form of surreptitious acquisition and English courts have voiced their disapproval of such acquisition in a number of cases, including Campbell21 and R v Loveridge, Lee and Loveridge22. It must be emphasized though that a surreptitious acquisition may only serve as giving rise to a reasonable expectation for privacy and it may not necessarily be enough to attain the status of “confidentiality”. Similarly, photographs obtained through harassment may also give rise to a reasonable expectation for privacy, as evidenced in Von Hannover23.
Flexibility versus consistency
The approach outlined above may not necessarily lead to consistent results in the general sense, given its inherent flexibility. However, in one way it may in fact promote consistency in the predictability of outcomes. Thus, by way of example, paparazzi or photographers who have used unconscionable means may well be able to predict that their actions are likely to be caught by the principles that govern Article 8 simply because of their questionable manner of acquisition. The other factors will play out in a similar fashion. It is submitted that this flexible approach brings a welcome degree of pragmatism with it.
The issue with applying Article 8 to celebrities is by no means easy to resolve. As pointed out earlier, the very nature of the work that celebrities engage in makes it innately difficult for them to argue that their privacy was breached when they were photographed in public. Yet the law would be unduly discriminatory if it were to fail to provide a remedy to a celebrity who has a genuine grievance, especially in light of the personal development and autonomy principles that underlie Article 8. The best way of resolving the issue is to deal on a case-by-case basis with close scrutiny and to turn the focus away from the nature of the celebrity’s life to the other factors detailed above, especially the manner of acquiring images.
In this respect, it is submitted that at present, the case law suggests that courts in the UK are working in an informed manner that recognizes the right amount of privacy-related interests when it comes to celebrities. However, it would be more productive if the courts were to apply some systematic criteria (as stated by Moreham)24. It may be even better for purposes of certainty to put such criteria on statutory footing. However, if the legislature were to go down that road, it ought to be cautious by leaving an appropriate amount of discretion to courts; this is because this is one of those issues where the right amount of flexibility can paradoxically lead to a greater degree of certainty as illustrated above.
1 Section 2 of the HRA 1998.
2 See e.g. the trends from: Dudgeon v United Kingdom  (No.45), 4 EHRR 149; Goodwin v UK  35 EHRR 447; Lopez Ostra v Spain  20 EHRR 277; Freidl v Austria  21 EHRR 83; Von Hannover v Germany  40 EHRR 1; S and Marper v UK  48 EHRR 50
3 Moreham, N. ‘Privacy in Public Places’  CLJ 606; see also Schüssel v Austria (App. No.42409/98), 21.02.2002, and Sciacca v Italy  43 EHRR 20.
4  40 EHRR 1.
5 Ibid, at para 50; emphasis added.
6  EMLR 16.
7 Ibid, paras 38 and 39 generally, and para 40 specifically.
8 See e.g. Hughes, K. “Photographs in Public Places and Privacy” JML 2009, 159-171, especially 164-167.
9 Supra n6, para 41.
10  2 AC 457.
11 Ibid, para 51; emphasis added.
12 Phillipson, G. “The Human Rights Act, ‘Horizontal Effect’ and the Common Law: A Bang or a Whimper?  62 MLR 824; Moreham, N. “Privacy and Horizontality: Relegating the Common Law”  LQR 373.
13 Supra n10, at paras 21 and 134.
14 Theakston v MGN Ltd  EWHC 137 (QB); see also Lord Phillips MR in Douglas v Hello! (No.3)  EWCA Civ 595 at paras 105-106.
15 Supra n10, para 122.
16 Hughes, K. (2009), supra n8.
17 Hunt, C. “Rethinking surreptitious takings in the law of confidence” I.P.Q. 2011, 1, 66-85.
18 Hughes, K. (2009), supra n8.
19 Moreham, N. (2006) supra n3.
20 Ibid, pp. 621 to 632.
21 Supra n10, para 121-123.
22  EWCA Crim 973 at para 30.
23 Supra n4.
24 Moreham, N. (2006) supra n3.
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