Picture desks can be forgiven for feeling bemused by current law and professional guidance on non-consensual photography and privacy.

This area has been at the cutting edge of media law in recent weeks – with lots of heat but little light being shed on the subject.

In May, the High Court issued a ruling in Wood v The Commissioner of Police for the Metropolis that would have caused press photographers serious problems if the decision had gone the other way.

The claimant, a media co-ordinator for the Campaign Against the Arms Trade, alleged that the police's targeted surveillance photography of him in a public street, as he left a company's AGM, infringed his right to privacy under Article 8 of the European Convention on Human Rights.

But the judge decided the mere taking of non-consensual photographs in a public place was insufficient to engage and breach his right to privacy.

That ruling chimed with earlier decisions (for example, in claims brought by celebrities Naomi Campbell and Elton John) that the mere fact of covert photography is insufficient to make the information in a photograph private.

The decision in Wood followed hard on the heels of the Court of Appeal's ruling in the claim brought by J.K. Rowling on behalf of her young son, who was snapped by a picture agency as the author and her husband pushed him along a public street in a buggy.

In Rowling, however, the appeal court decided there was a strongly arguable case that the boy's privacy right had been infringed by such non-consensual photography, albeit that the photography occurred in a public place and revealed nothing confidential or embarrassing.

And this month, two other developments put the media farther onto the back foot.

The Press Complaints Commission decided a paper's publication of a video showing a police raid inside a woman's house breached her entitlement to privacy under Clause 3 of its Code, even though officers apparently seized some cannabis from the premises.

Then, in an application by controversial preacher Abu Qatada, the High Court granted an Article 8 privacy injunction banning publication of any images of his wife and daughters, and any images of people in their garden and house.

In contrast, the PCC recently ruled that an unauthorised photograph of Gail Sheridan, wife of former MSP Tommy, in her back garden did not breach the privacy provisions of the Code.

Meanwhile, Google StreetView's car-mounted cameras continue to amass thousands of unauthorised photographs of our cities' streets and people for non-consensual publication on the internet.

In view of the zigzagging patchwork of law and guidance as to which photographs do, and do not, infringe privacy, media lawyers eagerly await the result of the sensational privacy claim brought by motorsport boss Max Mosley against the News of the World.

Mosley is claiming exemplary damages over the paper's publication of covert video footage of him taking part in an S&M orgy with various women in a Chelsea basement.

Practitioners hope the forthcoming decision, by top privacy judge Mr Justice Eady, will shed much-needed light.

As things stand, privacy rulings appear to be so fact-sensitive and subjective that it is difficult to predict with any certainty what the courts and the PCC will decide the position is in a particular case.

That's not good for the law and press self-regulation – and still worse for picture desks.

Solicitor Nigel Hanson is a member of Foot Anstey's media team.
To contact Nigel telephone 0800 0731 411 or e-mail nigel.hanson@foot-ansteys.co.uk

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