Judges consider the rights to respect for privacy under Article eight alongside Article 10’s right to freedom of expression.
Civil law may be breached if people have been photographed, filmed or recorded without their consent. A judge should ask these such questions:
- Did the individual have ‘a reasonable expectation of privacy’?
- Has the person been persistently harassed by the media? Therefore can have public place exceptions
- Was the person in a condition, situation or event giving rise to a reasonable expectation of privacy, even though the individual was in or could be seen from a public place?
- Is there a ‘public interest’ exception to the rights of privacy?
- Is the photo or footage or recording so widely published that a ban would be pointless?
Courts also consider the degree of harm the publication could cause and the detail/extent of the images captured, for example covert photography is likely to be more intrusive.
There is no law banning photography or filming or recording in public places but the Protection from Harassment Act 1997 deals with ‘stalkers and paparazzi who hound celebs. Harassment is not defined in detail under the act but can include causing alarm and distress more than once.
The Editors’ Code of Practice and Ofcom Code give guidance on when publication is unethical. Breaching the codes may not be breaching privacy law but complying can reduce the likelihood of a privacy lawsuit.
- Everyone is entitled to respect for his or her private and family life, home, health and correspondence
- Editors will be expected to justify intrusions into any individual’s private life without consent
- It is unacceptable to photograph individuals in private places without their consent
Doorstepping is the filming or recording of an interview or attempted interview, or announcing that a call is being recorded for broadcast purposes without any prior warning. This is an ambush technique which can be used against someone who is unlikely to agree to an interview.
Clause eight of The Editors’ Code makes it a necessity for journalists to identify themselves and obtain permission before entering non-public areas of hospitals or similar institutions. There needs to be a two- stage consent: one before recording begins and another for broadcasting the footage.
Under the Editors’ and Ofcom codes, journalists should respect an individual’s refusal.
- Journalists must not engage in intimidation, harassment or persistent pursuit
- They must not be persistent once asked to desist or leave and if requested journalists must identify themselves and who they represent
- Editors must ensure these principles are observed by journalists
Approaches involving grief or shock must be made with sympathy and discretion, publication must be handled sensitively. Articles breaking this news should not contain graphic detail likely to add to the distress as the breaches clause five.
Protecting children’s privacy and welfare
- Young people should be free to complete their time at school without unnecessary intrusion
- Under 16s must not be interviewed or photographed on issues involving their own or another child’s welfare unless a responsible adult consents
- Pupils must not be approached or photographed at school without the permission of the school authorities
- Minors must not be paid for material involving children’s welfare, nor parents or guardians unless it is in the child’s interest
- Editors must not use the fame, notoriety or position of a parent or guardian as sole justification for publishing details of a child’s private life
Ofcom states that broadcasters should pay particular attention to the privacy of under 16s; consent must be obtained by a parent, guardian or an adult in loco parentis and wherever possible the individual concerned. Consent may not be needed is the subject matter is trivial or uncontroversial.
There are public interest exceptions including exposing crime or negligence imperilling people’s safety and exposing deception by an organisation or a hypocritical politician.
Publishing material from social media sites could potentially be a breach of copyright and an intrusion into privacy if the individual was portrayed in a private situation and was unaware of the uploaded content.
megrosefisher 