An illustrious novelist once wrote: “A photograph is a moral decision taken in one eighth of a second.”

This observation reaches to the core of the problems that photos create for journalists and perhaps helps to explain why they are so frequently the subject of legal complaint.

From issues such as the “wrong photo”, to privacy, copyright and the PPC/IPSO Code, issues relating to photographs are a regular occurrence.

Cases involving a wrong photo – the wrong person photographed outside of court for example, or publishing a photo of the wrong sibling by mistake – can be a legal nightmare to deal with, no matter how the mistake occurred. Invariably, wrong photos occur in relation to negative articles, and defamation claims are often threatened as a result.

Privacy is another consideration which often means that questions need to be asked about how and where a photograph was taken. Did the subject have a reasonable expectation of privacy? Where was the photographer standing? Did s/he use a long lens? Does the photo reveal something private about the subject?

All of these aspects should be considered prior to publishing a photograph. In a recent ruling relating to photographs of Paul Weller’s children, damages of £10,000 were awarded when photographs of Weller’s three children were published on the Mail Online, after they were photographed whilst on a family outing in Santa Monica, California. This case is a sharp reminder that just because the subject is in a public place, it doesn’t mean that they no longer have a reasonable expectation of privacy. It also highlights that although the photographs were taken lawfully in the US, it wasn’t automatically lawful to publish them in the UK.

The PCC Code contains special provisions about photographs in hospitals and schools as well as images obtained as a result of subterfuge or those that are deemed to be an intrusion into grief or shock.

Social media is a rich seam from which photos can be mined. Yet you still need to consider how public the photo actually is before publishing it. Can you only access the photo because you are a “friend” of the subject, or a “friend of a friend”? If so, it may be that the individual has a reasonable expectation that the image will only be viewed by a limited pool of people, and not by anyone who happens to walk past a newsagent and glance over at the local paper.

The other consideration with photographs that emanate from social media is copyright.

The point to remember is that someone, somewhere, always owns the copyright in a photo or video – and you can be sure that the person who appears in the photo is not, and indeed the laws says cannot, be the copyright owner – unless it is a ‘selfie’ that is.

The rule of thumb is that copyright is owned by the person who took the photo. Most of the time, copying photos from social media does not present a problem. But every so often, a private individual will take the opportunity to make some tax-free cash by demanding compensation for infringement of copyright. And if the photographer is a professional, you can be pretty sure that a claim for damages will be almost inevitable.

An anomaly to be aware of in relation to copyright is that upon death, copyright vests in the deceased’s estate. So, unlike defamation actions, which die with the claimant, copying a ‘selfie’ from a deceased person’s Facebook profile, for example, could bring about an infringement claim from their executors.

The problem is that the value of these types of claims can be much higher than you think. The courts are capable of putting a high price on even a relatively small infringement of copyright.

In a relatively recent case, a professional photographer was awarded over £5,000 when a photo they took of Ke$ha when they had exclusive access to her tour bus, was used by a local promoter in a poster campaign, without the photographer’s permission. The award of over £5,000 was made in spite of the fact that the promoter argued that they would never pay more than a few hundred pounds for using a photograph on their website.

So the motto of the story is – think before you copy.  And, fortunately, once a photo has been taken, there is usually a little longer than an eighth of a second to decide whether it should be published!