Looking Again at Photographs and Privacy: Theoretical Perspectives on Law’s Treatment of Photographs as Invasions of Privacy

LAW, CULTURE AND VISUAL STUDIES, A. Wagner, R. Sherwin, eds., Springer: Netherlands, 2013

Sydney Law School Research Paper No. 11/07

33 Pages Posted: 2 Feb 2011 Last revised: 15 Jul 2013

David Rolph

The University of Sydney Law School

Date Written: February 1, 2011

Abstract

Courts in the United Kingdom, Australia and New Zealand are increasingly entertaining claims for invasions of privacy. Many of these cases involve the publication of photographs by a media outlet. In the United Kingdom in particular, the means of protecting personal privacy has been the adaptation of the existing, information-based cause of action for breach of confidence. This has entailed treating photographs as a form of information. This essay analyses the imposition of liability for the publication of intrusive photographs, as it is developing in the United Kingdom, using Campbell v MGN Ltd [2004] 2 AC 459 and Douglas v Hello! Ltd [2008] 1 AC 1 as case-studies. It applies critical insights from leading theorists on photography, such as Barthes, Berger and Sontag, to suggest that the judicial treatment of photography is underdeveloped.

Keywords: Media law, Privacy, Breach of confidence, Photography, United Kingdom, Australia, New Zealand, Theory

JEL Classification: K10, K13, K30

Suggested Citation

Rolph, David, Looking Again at Photographs and Privacy: Theoretical Perspectives on Law’s Treatment of Photographs as Invasions of Privacy (February 1, 2011). LAW, CULTURE AND VISUAL STUDIES, A. Wagner, R. Sherwin, eds., Springer: Netherlands, 2013; Sydney Law School Research Paper No. 11/07. Available at SSRN: https://ssrn.com/abstract=1752658

David Rolph (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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