Stealing souls? Photographs and privacy

Rebecca Moosavian

This is a summary of Rebecca’s recent article in NILQ 69(4)

In the current digital era, our lives are saturated with photographic images to an unprecedented degree. Technology allows us to capture and share more images than ever before; the visually recorded life and its highly curated online projection is becoming the new norm. This mesmerising, hyper-filtered, image-based, competitive culture creates new social and moral terrain to be navigated and raises profound unease, particularly for many who grew up in the pre-digital era. It is against this backdrop that my article examines how the human right to privacy (under Article 8 of the European Convention on Human Rights) deals with photographs. What rights or protection does it afford to the photographed person, and how do judges deal with the medium of photography? Though many of the cases concerning privacy and photography involve high-profile celebrities such as Catherine Zeta Jones, Naomi Campbell and Paul Weller, the law has much wider implications for the legions now relentlessly cultivating their eidolons on social media; in this sense, we are all celebrities now.

Numerous points of interest emerge from this research, but I will outline just three here. First, though the law does not go so far as to perpetuate the myth that ‘photographs steal souls’, it does contain echoes or traces of this ethos, particularly at European level. For privacy purposes judges treat photographs as ‘special’ and different to other text-based forms of information because they are more ‘intrusive’. One particularly interesting understanding of ‘intrusion’ in this context is the crossing of a boundary into a person’s ‘inner self’, ‘inviolate personality’ or spiritual interior. Many commentators see privacy as being ultimately concerned with protecting one’s ‘inner’ life or feelings from ‘invasion’. Thus, across privacy literature we see express references to the ‘spirit’, even the ‘soul’, and its modern, secular equivalent, dignity – a fundamental value that underpins human rights generally and privacy in particular. It is perhaps ironic that such non-rational ideas are at play in the supposedly rational approaches of law here.

Second, contemporary concerns about the privacy implications of social media are by no means new; in fact they echo similar nineteenth-century anxieties over the new photographic technology of the day. Indeed, this photographic technology – in particular its commodifying tendencies and the ‘visual revolution’ it ushered in – was a key factor that influenced the emergence of privacy laws in the late nineteenth century. So, contemporary concerns about capture-culture and over-sharing etc arguably reflect an instinctive discomfort that has accompanied photography since its inception.

Third, though the courts tend to distinguish between the initial taking of a photograph and the publication of that photograph, most legal disputes concern publication and so the initial capture stage tends to be neglected. This is particularly so in English law, where the law regulating photographic capture is unclear and judges are innately wary of creating open-ended image rights. There is more consistency between English and European courts when considering whether publication of a photograph violates a person’s privacy right. Courts agree that the distinctive features of the photographic medium may cause or exacerbate intrusion. This is because photography creates a permanent, infinitely replicable ‘truthful’ record of a person’s image that can be disseminated to the objectifying gaze of a mass audience. But the medium also leads viewers to overlook its inherent ambiguities, most notably the tension between whether photography transparently records events or subjectively constructs them.