Companion website for
COMPARATIVE MEDIA LAW & ETHICS
by TIM CROOK
Published by Routledge on 15th December 2009
For details of the book, please visit Routledge.
Author's profile at Goldsmiths, University of London
The Privacy rights of Individuals caught up in public events
Contrasting US and European media law
This November 2009 ITN report of the remarkable incident of a woman falling onto an underground railway line with the oncoming train stopping inches from her is an interesting example of how the contrasting privacy laws of the USA and Europe would mean that the footage could be censored if the event had happened in Europe and involved an EU citizen.
The woman involved has stronger privacy rights in Europe. After the Geoffrey Peck v United Kingdom case was taken to the ECHR, her identification and depiction in any perceived ‘humiliating’ circumstances means that she could sue any media organisation that broadcast the footage without her consent. Even the pixellation of her facial features may not have been enough. (It was not in the Geoffrey Peck case where a television newscast of the event had endeavoured to conceal identifying features. Peck argued that he was still identifiable to people who knew him. He had gone into Brentwood town centre equipped with a large kitchen knife to attempt suicide.)
The woman in the US underground train footage still has privacy rights in the USA but they are trumped by the First Amendment constitutional imperative that she is part of a news event taking place in public which is clearly a matter of public concern/interest.
However, if the event had taken place in the London area for example she could have given her consent to her identification and media organisations publishing the footage whether by broadcast or online media would not have been liable to privacy action.
Under the old English and Welsh common law tradition the European right to respect for privacy law would not have had any bearing on the censoring of the coverage of this incident because prior to the 2004 House of Lords ruling in Campbell v MGN, freedom of expression had constitutional priority in case law and custom and practice. But at present the Human Rights Act 1998 imposes a statutory obligation on the UK courts under sections 2 and 6 to take into account ECHR jurisprudence and give effect to convention rights. We are therefore subject to European media law privacy jurisprudence.
It remains to be seen whether the UK’s new Supreme Court retrieves and resets the constitutional priority of freedom of the press/media and freedom of expression over the right to reputation and privacy, and other rights such as national security and fair trial.
It is also argued that this can only be done through a new constitutional bill of rights and written constitution for the United Kingdom.
The ECHR ruling of Peck v United Kingdom in 2003 can be read in full.
http://www.bailii.org/eu/cases/ECHR/2003/44.html
The ruling observed:
‘On 12 October 1995 the Brentwood Weekly News used a photograph of the incident involving the applicant on its front page to accompany an article on the use and benefits of the CCTV system. The applicant's face was not specifically masked.
On 13 October 1995 an article entitled “Gotcha” appeared in the Yellow Advertiser, a local newspaper with a circulation of approximately 24,000. The article was accompanied by a photograph of the applicant taken from the CCTV footage. The newspaper article referred to the applicant having been intercepted with a knife and a potentially dangerous situation being defused as a result of the CCTV system. It was noted that the applicant had been released without charge.
As a result Anglia Television sought, and the Council provided, footage of the incident involving the applicant. On 17 October 1995 extracts from that footage were included in its news programme about the CCTV system, a local broadcast to an average audience of 350,000. The applicant's face had been masked at the Council's oral request. However, that masking was later considered inadequate by the Independent Television Commission (see below), the applicant's distinctive hairstyle and moustache making him easily recognisable to anyone who knew him.’ (paragraphs 14-16)
The ECHR’s conclusion was:
‘In such circumstances, the Court finds that the applicant had no effective remedy in relation to the violation of his right to respect for his private life guaranteed by Article 8 of the Convention. The Court does not accept as relevant the Government's argument that any acknowledgment of the need to have a remedy will undermine the important conflicting rights of the press guaranteed by Article 10 of the Convention. As noted above, the Council, and therefore the media, could have achieved their objectives by properly masking, or taking appropriate steps to ensure such masking of, the applicant's identity.
Accordingly, there has been a violation of Article 13 of the Convention taken in conjunction with Article 8. (paragraphs 113-114)
