Wednesday, June 9, 2010
Until recently, Anglo-Australian law refused to recognise a legally enforceable right to privacy. One consequence of this position was that individuals had scant protection if their photograph was taken in a public place and subsequently published. The dictum that what one could see, one could photograph represented the common law position. However, given recent developments in privacy protection, particularly in the United Kingdom following the introduction of the Human Rights Act 1998 (UK), the applicability of this dictum is doubtful. There is a growing body of case law in which individuals complain about the publication of photographs of them taken in a public place. This article argues that the common law’s original position on this issue rested implicitly upon an equivalence between the human eye and the camera, which prevented any distinction being drawn between the acts of looking, seeing, photographing and publishing. There has been an epistemological shift in the common law’s attitude towards photography, so that now a distinction is drawn between the human eye and the camera, which allows legal consequences to attach to the publication of photographs, even if those photographs are taken in a public place. In addition, there has been a shift in the concept of privacy in the legal imagination of the common law. Whereas the common law historically constituted privacy around the concept of private property, the emerging position constituted privacy around the private individual.
Download the essay from SSRN at the link.