Privacy Law and Policy Reporter
Consider the following scenarios.
These scenarios raise the issue of the extent to which a right to privacy exists which may be violated by the publication of photographs.
It is quite possible that for each of the above scenarios, the people affected would have no remedy under Australian law. This article explores the extent of legal protection awarded to privacy in photographs or lack thereof. In Australia there is no straightforward law that protects an individual’s privacy. Furthermore, the ‘patchwork’ of protection measures provides assistance only in limited circumstances.
If the privacy rights of the individual are to be adequately protected, perhaps copyright law is not the right vehicle.
This quotation is taken from an article in the Intellectual Property Law Bulletin ((1998) 11(5) IPLB 49) which explored issues of copyright ownership in commissioned photographs and the recent changes to the Copyright Act 1968 (Cth) (the unamended Act), introduced by the Copyright Amendment Act (No 1) 1998 (Cth) (the Amendment Act). Under s 35(5) of the unamended Act, copyright did not automatically vest in a person who commissioned the taking of a photograph under an agreement for valuable consideration. The Amendment Act has now modified this exception by allocating copyright to the commissioning party where a photograph has been commissioned for ‘private and domestic purposes’, which are defined to include ‘a portrait of family members, a wedding party or children’.
It has been suggested that the legislative basis underlying this exception is centred on the need to accommodate the conflict between the photographer’s right to reproduce that work and on the commissioning party’s desire to control or limit that right. Commentators have suggested that its real effect is to operate as a ‘wanting substitute for privacy legislation’.
Certainly, if photographers were to retain residual copyright in ‘private’ photographs, individuals could strike difficulty in restraining unauthorised publication of photographs of themselves that were initially commissioned for private and domestic purposes.
In Australia, there is no common law right to privacy. This was demonstrated in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor where the High Court held that the act of overlooking someone’s racecourse and broadcasting the results of the race did not constitute an infringement of legal rights. Presumably, the same result would have been reached had the races been photographed.
The lack of such a right heightens the role of s 35(5) of the Copyright Act 1968 (Cth) insofar as it applies to private and domestic photographs. Yet its limited application means that it does not adequately fill the privacy ‘gap’. For example, it only applies to a commissioner of photographs. So if a mere passerby were to take a photograph, that person would be free to publish that photograph, or sell it for publication, despite having received no authorisation to do so from the subject. Further, in order to own copyright pursuant to s 35(5), the subject must have paid ‘valuable consideration’ to the photographer, a requirement that has led to some controversial findings.
The view that copyright law and privacy law should be kept entirely separate was supported by the US Congress when it debated the issue of whether a photographic portrait should be considered as a work made for hire for the purposes of the Copyright Act of 1976 (US). The ‘work for hire’ doctrine under US copyright law vests copyright in the commissioning party in certain circumstances. One of these is where the work is ‘made for hire’ pursuant to an employment relationship. Photographic portraits were ultimately excluded from the doctrine’s application on the basis that the rationale underlying the vesting of copyright in a commissioned portrait to a commissioner was related more to the privacy interests in controlling the reproduction of a picture of oneself, rather than to the notion that the commissioner was the true author of the work.
Regardless of the comments made above, the presumption that the copyright in a private and domestic commissioned photograph vests in the commissioning party can provide effective protection of an individual’s privacy. This is illustrated by a US case, Mail v Express Newspapers. In this case, the commissioner-ownership exception empowered a married couple to grant a newspaper rights to publish the couples’ wedding photographs, to which they held the copyright, in ‘newsworthy’ circumstances where the wife, who was dying, was being kept alive to give birth.
The indirect protection of privacy rights via photographic copyright is also vividly illustrated by the decision in the English case Williams v Settle. The defendant was found liable for infringing the copyright in a wedding photograph commissioned and paid for by the bride’s father. Some years later, the father was murdered and the photographer sold copies of the wedding photograph to two national newspapers. The Court held that since the photographs had been commissioned for valuable consideration, copyright vested in the estate of the father and the photographer was in breach of copyright in having provided the photographs to others for publication.
Other individuals, however, have not been so lucky.
As mentioned above, if photographs have not been commissioned ‘in pursuance of an agreement for valuable consideration’ then copyright will reside with the photographer. Such photographs may then be used for secondary purposes such as advertising or publications for which, had the subject been informed, he or she would not have consented.
For example, in 1994, to illustrate The Parent’s Charter, photographs of children were published in a brochure without their parents’ permission. Twenty million copies of the brochure were circulated to households in England. Parents of the children had no legal recourse, but expressed dismay that the photographs of their children were used for a politically sensitive publication and without their consent.
Apart from the commissioner-ownership exception, which provides indirect protection of an individual’s privacy in his or her image, protection of privacy in one’s photographic image is served by a cocktail of laws, including defamation, breach of confidence and possibly, nuisance. This ‘mixed bag’ of privacy measures continues to grow in an ad hoc manner.
In Australia, protection against the appropriation of the images, names and likenesses of well known personalities is based on the common law tort of passing off which may arise from the increasingly popular practice of character merchandising. The action of passing off, however, protects the commercial opportunity for exploiting an individual’s reputation, rather than privacy in an individual’s image. Similarly, the unauthorised use of ‘images’ of celebrities may also sound an action for misleading and deceptive conduct in breach of s 52 of the Trade Practices Act 1974 (Cth) (TPA).
The action of passing off protects the commercial opportunity for exploiting one’s reputation, rather than privacy in one’s image. Section 52 of the TPA is designed to protect consumers from misleading or deceptive conduct and the unauthorised use of a photograph may mislead the public into thinking a commercial relationship or sponsorship agreement exists between the subject of a photograph and the product the photograph is endorsing.
For example, in an Australian case in 1960, the plaintiffs, two well known professional ballroom dancers, were able to restrain the defendants from releasing a record of ballroom dancing music which displayed their photograph on the cover without their consent. The NSW Full Supreme Court held that the plaintiffs’ potential to exploit the goodwill in their names and reputation could be damaged by the defendant’s conduct.
In contrast, an action for passing off did not succeed in a far more recent case where a well known champion athlete, Gary Honey, was used on a poster produced by Australian Airlines to promote sport. The poster bore the name of the airline and its logo in small print. The photograph was later used with the airline’s permission on the front cover of a book published by a religious organisation. Honey’s permission had not been sought in either case. Honey’s passing off action failed since it was held that he was unable to establish that:
... a reasonably significant number of persons seeing the poster, the magazine or the book, would draw or be likely to draw from them the message that the applicant was giving his endorsement to Australian Airlines or to the religious organisation.
Although this case involved the unauthorised use of a photograph, it did not involve a typical advertisement relating to the supply of goods or services. The non-commercial nature of the promotions would have been an important factor underlying the decision. The case clearly demonstrates that the law of passing off affords no protection for the unauthorised publication of a photographic image of a private individual who is not engaged in commercial business, or who does not have a sufficiently commercially saleable reputation. Moreover, the use of the photographs complained of by the plaintiff must be such that the public would believe there was an association between the plaintiff and the defendant.
Can it be assumed that the public is aware that celebrities sometimes give exclusive publicity rights to events such as weddings? If so, are unauthorised photographs of such events subject to legal sanction? It has been suggested that these questions would have arisen for discussion in the Warne case had the matter not been settled.
In the Warne case, a guest at Shane Warne’s private wedding took three rolls of film for developing to ‘Rabbit Express’ for development. An employee of Rabbit Express recognised Shane Warne in the photographs and sold the prints to a national magazine.
The Warnes sued the film processor and alleged that they had a ‘property right’ in the photographs taken by the guest ‘which entitled them to deal with the photographs as they wished, including a right to permit publication for reward and a right to preclude others from unauthorised dealing with the photographs’. The Warnes also alleged that by selling the photographs the processor had represented that the Warnes had approved or were otherwise associated with the publishing of the photographs. This representation was alleged to be in breach of s 52 of the TPA. In order to succeed in a passing off action, it would have been necessary to show that members of the public would assume that no photographs of a celebrity’s wedding would be published without some kind of commercial arrangement. This could be difficult to establish, especially in the case of photographs being taken in a public place such as outside a church. Unfortunately, the settlement of the Warnes’ case meant the court did not have the opportunity to resolve this issue.
Can being photographed unwillingly amount to nuisance? Some cases suggest that if someone were to be stalked or followed and photographed by lurking cameramen every time they left their house, it is possible that an action under the tort of nuisance could arise.
In the case of Bernstein (Baron) v Skyviews Ltd it was held that a single unsolicited photograph of the plaintiff’s property taken from the air could not amount to an actionable nuisance. Dicta from this case suggested that had the plaintiff, Lord Bernstein, been subjected to the harassment of constant surveillance of his house and the photographing of his every activity, an actionable nuisance might have been held to have taken place.
It has long been accepted that the publication of photographs can constitute defamatory matter. To succeed in an action for defamation, three essential elements must be shown:
(1) the matter complained of is defamatory;
(2) the plaintiff is identified as the person to whom the defamatory matter relates; and
(3) the matter is published by the defendant to a third party.
In light of these requirements, defamation can provide protection against the unauthorised use of a person’s photograph in limited circumstances. For example, in Garbett v Hazell, Watson and Viney, it was held that the placement in a magazine of a photograph of a nude woman next to that of the plaintiff raised an innuendo which lowered the plaintiff’s reputation and was therefore libellous. In Tolley v Fry the use of a picture of an amateur golfer as an endorsement for Fry’s chocolate was libellous, but only in so far as it raised an innuendo questioning his amateur status. In Dunlop Rubber Co Ltd v Dunlop the plaintiff attempted to restrain an advertisement containing pictures of his head placed on ‘the body of a very tall man dressed in exaggeratedly foppish manner’. The Court approved the grant of an injunction restraining publication.
Similarly, in Kirk v AH & AW Reed, the plaintiff, who was not a celebrity, claimed that the persons who photographed him had posed as tourists seeking photographs for personal reasons. They asked him to pose as a ‘typical New Zealander on the booze’. The photograph was published with the following caption: ‘A reveller with his Christmas Beer ...’ The judge considered that the photograph together with a caption could possibly hold the plaintiff up to contempt or ridicule and was therefore defamatory.
It should be noted that the publication of a person’s photograph without their consent is not of itself enough to give rise to a cause of action for defamation. Once the elements outlined above are established it must be shown that an imputation arises from the publication and that that imputation lowers the plaintiff’s reputation and exposes him or her to contempt. While it is relatively easy to establish the elements of a defamatory publication, the defences available to a publisher are extensive and often prove to be the stumbling block for plaintiffs in running a successful suit.
The major defences available include: justification, where the imputation was in fact true; fair comment, where criticism is justified as being in the public interest; satire; and the somewhat controversial implied constitutional right to political free speech. These numerous defences, when coupled with the relatively low damages awarded in defamation cases, mean that defamation rarely provides satisfactory protection against the unauthorised use of a person’s photograph.
The law in Quebec provides an interesting comparison with Australian law in this area. Unlike the rest of Canada’s provinces, which are governed by a common law system, Quebec’s private law is governed by civil law. Quebec has enacted the Quebec Charter of Human Rights and Freedom. Section 5 guarantees every person a ‘right to respect for his private life’.
In the relatively recent case of Aubry v Editions Vice-Versa, the Supreme Court of Canada held that the publication of an ordinary citizen’s photograph without consent could, in certain cases, violate his or her right of privacy under Quebec law. In this case, a photograph of a 17 year old girl sitting on a step in front of a building on a popular street in Montreal was published in Editions Vice-Versa, a magazine dedicated to the arts, in order to ‘illustrate contemporary urban life’. The defendant acknowledged that the photograph was taken in a public place and published without Ms Aubry’s consent. Ms Aubry sued the photographer and Editions Vice-Versa claiming that the unauthorised publication of her photograph violated her right to privacy guaranteed by s 5 of the Quebec Charter.
Finding in favour of Ms Aubry, the Court concluded that the right to one’s image is included in the right to respect one’s private life in s 5. Accordingly, the publication of the photograph of an identifiable individual without his or her consent is, on the face of it, a violation of that right. The Court recognised, however, that there are cases where the public’s right to be informed, or freedom of expression (which is also protected by the Quebec Charter) will outweigh the individual’s right to privacy. The balancing of the rights in question depends on the circumstances and context of use.
The Court gave examples of circumstances where the taking of a photograph of an individual would not be a violation of their right to be left alone. For example, persons engaged in public activities that have certain notoriety, such as politicians, cannot complain if their photograph is published without their consent. A further exception is when an individual’s own action ‘accidentally’ places him or her in a photograph incidentally, such as being part of a crowd at a public sporting event or demonstration. In other words, the person cannot object to the publication of a photograph if he or she is not the principal subject.
The above demonstrates the limitations of the main legal remedies available to a person whose photograph has been published without their consent. It is submitted that the law in Australia does not adequately protect individuals’ privacy from being violated by the publication of photographs. Particular problems may arise in the case of private and domestic photographs, where the individual person or people who are photographed later become newsworthy, or if photographs of ordinary individuals are used for commercial purposes such as advertising.
Perhaps the Quebec law, which provides a remedy based on the concept of the ‘right of respect of one’s private life’, should be given consideration by Australian legislatures as a model for legislative refrom.
Sharon Theedar, solicitor, Deacons Graham & James, Melbourne.