Capturing the key moment in time: completing a PhD on photography and law “Controlling the Shutter: Control, Consent and Context in a Digital World” | Holly Hancock

You’ll often hear it said – “I need a photograph of that”. For many, photography has been synonymous with existentialism, or proving something happened, perhaps for humour, entertainment or just simply documentation. But the desire, or need to both take and share photographs has fundamentally changed in recent years. Photography is a medium that has seen a number of developments throughout history. Originally seen as a privilege for the professional and ‘upper classes’, technological developments such as the Kodak Brownie helped to bring photography to the masses. Next came digitalisation, whereby thousands of photographs could be taken at very little cost, with no impact on the quality of the image. The final piece of the jigsaw has been the smartphone revolution, with the integration of sharing and capturing technologies. Now, not only can anything be photographed, but can be shared, on a potentially global scale, with the click of a button.

This begs the question, to what extent should a person: (a) be able to photograph, and (b) have control over the taking and dissemination of their image. This is what my PhD research aimed to achieve, concluding that the rate of technological change has meant that the current privacy law is no longer fit for purpose, it is trying to catch up with technology, and consequently improved guidance and education would be preferable as a mechanism to better support an individual’s rights.

I’ve always been very pro-photography. I find it amazing that you can capture a moment in time and preserve it, potentially forever. There’s something magical in that, and at the start of my PhD I would have said to everybody that the most fundamental thing to maintain is the freedom to photograph, important as a historical record, evidence and documentation. I still believe this is very important, but during the course of my studies, society has changed; photography has become far more intrusive, not only in terms of press invasion, but also how the everyday person acts. Increasingly, social media is used a mechanism of shaming individuals via photographs, or just simply to capture the events of everyday mundane life, which, without social media, there would be no question of sharing the moment or experience with others. This might seem harmless enough, but it seems this is not always the case. Even if you are not on social media, the chances are that an image of you will have been shared online. This might be something you’d pleased about or proud of, but, conversely, it might be something you’re not so proud of, and would sooner other people didn’t see or know about. What if you don’t have the choice? It’s all very well being a person in the crowd, but what about when the focus is on you?

Most people will remember the infamous ‘Cat in the Wheelie Bin’ incident, where the perpetrator Mary Bale was vilified for her actions. After the film clip was posted on YouTube by Lola the cat’s owners Darryl and Stephanie Mann, millions of people who had never met Bale passed judgment on her actions. This was the ‘Court of Social Media’ in full force. Shortly afterwards, Bale was prosecuted for her actions under section 4(1)of the Animal Welfare Act 2006 receiving a ban on keeping animals for five years and a fine of £250, but, arguably, without such footage, it would have been surprising had (a) the perpetrator had been found, (b) action had been taken. Bale’s actions in this instance were obviously wrong, she admitted herself that the act was carried out in a ‘moment of madness’, but the social media reaction was far greater than the legal reaction. Recently, six individuals were arrested after having videoed themselves burning an effigy of the Grenfell Tower and posted this on social media. With the actions branded as ‘utterly unacceptable’ by Prime Minister Theresa May, the widespread sharing of the video online has raised difficult questions about acceptable and unacceptable content online, as well as the impact of sharing via social media.

Of even more concern is where images are taken by members of the public which purport to show illegal/immoral behaviour. An example of this might include Park It Right pages on social media, where individuals are shamed by other members of society through photographs of bad parking being posted on Facebook, a practice which operates outside of traditional mechanisms of justice.

When considering these matters, the Article 10 (freedom of expression) vs. Article 8 (right to respect for private and family life) of the European Convention on Human Rights debate comes into play. I identified three aspects of crucial importance, these being control over the image, the role played by consent and the context of images, which serve as the underpinning themes that run throughout the thesis. Control is really the critical factor, particularly the extent to which one has, or should have, control over their personal image, particularly given how this can be challenged by technology. Although there has traditionally been no culture of image rights in English law, given the increasing number of ways in which a person’s image may be shared, often with long-lasting consequences, this may be an area which will receive more focused attention in the future. As the Strasbourg jurisprudence progresses towards increased protection of the individual’s privacy,[1] and there are indications that the courts in England and Wales are moving ever closer to this outcome,[2] this is juxtaposed against the increasing pervasiveness of photography, providing a challenge for both the lawmakers and those who are affected. My research is premised on the basis that a lack of cohesion in both legal principles and the subsequent understanding of these principles leads to a chilling effect on an individual’s actions. My research used both elite semi-structured interviews (including with police, journalists and politicians) and a research survey (to gauge understanding of the current law through a limited qualitative survey). This methodology enabled the research to go beyond consideration of the theoretical and practical difficulties with the current law, and provide a limited demonstration of how the law is perceived and (mis)understood by groups of individuals before considering solutions to best fit the needs of those affected, largely focusing on the law as applicable to the everyday person, rather than the celebrity/public figure.

Three wide-ranging topics were considered: the impact of images on the illegal/immoral divide; the role of images in citizen journalism (both organised and accidental) and the impact of the image on personal life, and subsequently some broad conclusions were drawn. Firstly, that control signifies an element of choice that is not always present, which can be particularly amplified by an imbalance in power (e.g. the power exercised by the photographer as opposed to the photographed). Secondly, there appears to be little consensus as to the role played by consent, with lack of consent more closely associated as being an aggravating factor. Finally, the importance of context cannot be understated,

as this impacts upon the interpretation of an image, and an image taken out of context is where most problems occur. There are also a significant number of problems with the understanding and limitations of the current law of privacy, including that its all-encompassing nature is too broad to be effectively applied, yet it does not adequately cover situations where protection might be required (e.g. public shaming). I intend to publish my full findings in due course.

Studying a fast moving area of law is undoubtedly challenge, but a rewarding one at that. Just the day before my Viva in September 2018 the Chief Executive of Ofcom announced plans to introduce a regulator for social media, in a similar vein to regulation of mobile phone and broadband.

Taking a picture is easy. It’s what happens to it next that we need to consider.

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¹For example Reklos and Davourlis v Greece [2009] ECHR 200; Von Hannover v Germany (No. 2) [2012] EHRR 294
²For example Weller & Ors v Associated Newspapers Ltd [2015] EWCA Civ 117