[email protected]: A fickle flicker of ethics

The ease of taking and publishing photos creates new dangers to privacy.

By ASHER MEIR
October 4, 2007 22:55
Camera.

camera 88. (photo credit: Courtesy)

Do you think you own your image? If you do, you will probably be surprised how limited are your rights over its use. The law and ethics of publishing photographs usually make headlines and op-eds in the context of paparazzi, who specialize in taking often-intrusive private photographs of celebrities. But this is an area that has increasing relevance for private citizens, for whom the considerations are actually quite different. The two main legal and ethical considerations in photography are privacy and exploitation. Many people would rather just not have the whole world know what they were doing when they were photographed, and feel their privacy was invaded; in addition, if a person's image is used in commerce the subject is entitled to compensation. When are these principles violated? The rules differ from country to country, but here are the main guidelines: Your privacy can be invaded if someone publicizes your acts without any meaningful public interest. If the image or report is unfavorable and not newsworthy it could even be considered libel. It is easy to see that celebrities find it hard to hide behind this one, since if you are (for example) the Princess of Wales virtually anything you do can be considered newsworthy. Your image is used commercially if it is used to make money, but this category is narrower than you might think. A magazine is in business to make money, but if they use your image in a story it will probably be considered "editorial" and not commercial. A well-dressed man who appeared on the front page of the New York Times Magazine to exemplify the cover story on the "The Black Middle Class" sued the paper since his image was used against his will (he claimed he didn't identify with the "middle class values" the article described). But he lost his case since this was considered a legitimate editorial use of a photo of a professional-looking Black man. Artists make money when they sell their photos in exhibitions, but art is considered protected speech and not commerce and so you likely lack protection there too. Here too, celebrities are the opposite of common people; if someone sells a picture of the average Joe or Jane at a gallery, a judge will probably be convinced that people are paying for the artistic vision of the artist and not for the image of the subject, but if you are a celebrity then you probably can convince the court that people are paying for your mug and thus compel the photographer to pay royalties. Recently, an Orthodox Jewish man sued photographer Philip Lorca DiCorcia who displayed his image in a gallery; again the court sided with the photographer since the subject was photographed in a public place and displaying the photo is considered an exercise of free speech. I think that this framework, which pretty much summarizes the law in most countries (Germany and France are exceptions with stronger protections for subjects) creates a sensible balance between the right to privacy and the right to free speech in the context of 20th-century technology. Until a few years ago, quality pictures were hard to take and hard to publish; only very few people would ever be photographed in a mass-circulation publication and only a very few people would ever see a picture in a gallery, so the total number of exposures was pretty small. Today, pictures are very easy to take and very easy to publish and the result is that virtually everyone in a rich country probably has a few pictures on the Internet, and given the power of today's search engines virtually anyone can find one. (I recommend giving it a try.) Furthermore, the protection against invasion of privacy is pretty weak. Even if you are a mega-celebrity stalked by super-professional paparazzi, it will be pretty hard to get a picture of you at a private get-together with a few friends in your own living room. But you probably didn't think anything about letting your best friend take a snapshot, and even if you knew that your friend automatically uploads all his photos to Flickr you probably didn't give it much thought. An Israeli educator told me that the situation is very disturbing among high school students. Youngsters have casual get-togethers with the occasional embarrassing moments that are probably no different today than in generations past. But in the past it was very easy to live these moments down, whereas nowadays someone likely snapped a picture of some soon-regretted pose (perhaps with an unobtrusive mobile phone camera) and the photo is posted on the Internet the next day, or perhaps even right away. Is this invasion of privacy? Not according to the traditional definition. I have hundreds of photos of family functions and I didn't need or get anyone's permission to show them to anyone visiting my home. But finding a solution is not simple, because the spread of technology is a two-edged sword. We are still talking about finding a balance between privacy and free speech, but the ante has been upped on both sides. The potential for invasion of privacy is greater when the power to publish is given to every citizen, but the free speech at stake is also greater. It's one thing to tell a few thousand mass-market publications they now have to get permission from subjects (these are called "model releases"). It's much more disturbing to tell hundreds of millions of citizens they can no longer freely photograph events in their own lives and post them on private blogs or photo-sharing sites. I think a partial solution is in an extension of certain existing principles. One is that the definition of "commercial" use can be extended beyond immediate profit. In a similar context, courts have already ruled that widespread copying can violate fair use (which allows limited private copying) since it is tantamount to commercial use. This could possibly protect a photo posted to a photo-sharing site, which is primarily intended for family and friends of the poster, but challenge one posted to a site like YouTube in which a large audience is generally sought. Such an extension could possibly protect poor Mr. Nussenzweig, the man who sued photographer DiCorcia for invasion of privacy. The judge in the original case may have been right to view a dozen or so copies of the photo as "art" rather than "commerce" (even though they were sold for thousands of dollars each), but since the court case his image has become famous and quite possibly viewed by millions. Likewise we might see a more inclusive definition of libel or defamation. A generation ago a high school classmate would probably not have been liable for invasion of privacy for taking a compromising photo and showing it to a few friends, but I think a different standard is in order when a photo is posted on the Internet. The law should give victims some ammunition to make the photographers think twice before posting embarrassing photos even of close acquaintances. When it comes to image ethics, the dilemma today is the same as it was generations ago: balancing privacy and free speech. But modern technology greatly amplifies both of these concerns, and the law and ethics of displaying photos will have to reflect this change.


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