Re: Фотография и Право
FOUR AREAS OF PRIVACY LAW
A quarterly publication of the Reporters Committee for Freedom of the Press titled, "Photographers' Guide to Privacy," is helpful in sorting out the areas of privacy law that affect news photographers. Privacy law is divided into four areas:
* unreasonable intrusion into the seclusion of another,
* public disclosure of private facts,
* placing a person in a false light in the public eye, and
* misappropriation of a name or likeness for commercial gain (Strongman, 1987).
Unreasonable Intrusion
Consent is the most important factor when dealing with unreasonable intrusion or public disclosure of private facts. Generally, anything that can be seen in plain, public view can be photographed. Pictures in private places require permission. A photographer must be sure that the person who gives permission has the authority to grant the request. Some states will not accept the authority of a police or fire official or a landlord for a photographer to enter a private home. Written consent is preferred over oral consent. The Galella case was certainly an example of unreasonable intrusion on public property. The Lindbergh case was another.
Disclosure of Private Facts
Trespass laws require that photojournalists have the permission of an owner of a property before access can be gained. However, court rulings have sent mixed messages. A tenant at an alleged substandard apartment complex in Philadelphia gave permission to a television crew to enter the property. The landlord sued, but loss the case. Permission from a tenant is acceptable. A Kansas film crew lost its case when it was shown they used deceitful methods to obtain permission to film a nonpublic area of a restaurant. Misrepresentation is not acceptable. A Florida newspaper photographer was found not guilty of trespassing after obtaining permission from police and fire officials to photograph the body remains of a young girl killed in a fire. Permission from police officials is acceptable. However, that same Florida Supreme Court upheld a lower court decision in the case of a television crew who obtained permission from police officials to enter a private home that was part of a drug raid. States have different laws for journalists and trespassing. Editors should put together a package with the newspaper's legal representatives for all journalists on their staff telling them the trespassing laws that apply in their state (Sherer, 1986a).
False Light
Dr. Michael Sherer (1987) of the University of Nebraska explained the concept of false light. "Generally speaking," Sherer wrote, "a photojournalist can be found guilty of false light invasion of privacy if a person's image is placed before the public . . . in an untrue setting or situation" (p. 18). For there to be a false light decision against a photographer, the image must be highly offensive to a reasonable person, the photographer must have known that the image was false, or the photographer acted "with 'reckless disregard' (in other words, did not care) about whether the information was true or not" (p. 18).
The publication of a "stoutish" woman was ruled acceptable as the court noted, "There is no occasion for law to intervene in every case where someone's feelings are hurt." Filming by a camera crew of a man holding hands with a woman who was not his wife was ruled "not an act of extremely outrageous conduct." A person accidentally identified falsely in a caption does not constitute outrageous conduct. However, the publisher of Cinema-X magazine was cited for a "misidentified . . . photograph of a nude woman in a section of the magazine featuring I aspiring erotic actors and actresses' " (Sherer, 1986b, p. 26).
Misappropriation
The fourth area of trouble for a photojournalist in a privacy case is using a person's image for monetary gain without that person's permission. Clarence Arrington sued the New York Times for a picture it printed on the cover of its Sunday magazine illustrating an article, "Making It in the Black Middle Class." Arrington's "suit for invasion of constitutional and common law right to privacy was dismissed, but his complaint based on the sale of the photograph (by Contact Press Images-CPI-to the New York Times) was upheld in the New York Court of Appeals." The newspaper could not be sued because of the First Amendment protection, but CPI and the freelance photographer, Gianfranco Gorgoni, could have a claim against them. Unfortunately, the case was settled out of court without a ruling that might have protected picture agencies and freelance photographers (Henderson, 1989). A photographer may have the right to photograph anyone in public, but problems will occur when that image is published and is used to represent a class of individuals without that person's consent (Coleman, 1988). Freelance photographers need to be especially careful. One of the main reasons magazine editors and picture agency managers require releases from freelance photographers is to protect them from lawsuits by subjects.
When covering a news event, courts have ruled that photographers do not have to conform to rigid rules required for a subject's consent. Nevertheless, news media organizations are sometimes sued by individuals who argue that because the newspaper makes money, their violation of privacy case is valid. Most of these cases go in favor of the news organization on appeal because of the newsworthiness of the images. Freelance photographers, as Sherer (1987) noted, "need to pay special attention to the appropriation concept. There have been cases in which the selling of a photograph without the permission of those in the image had been held to be an appropriation of the person's likeness" (p. 18).
The Where and When of Picture Taking
Because many readers react strongly to pictures that seem to violate the privacy of others, it is important to be clear on the legal and ethical issues surrounding the right to privacy. An editorial writer in a 1907 edition of The Independent commented, "As regards photography in public it may be laid as a fundamental principle that one has a right to photograph anything that he has the right to look at" ("The ethics and etiquette," 1907, pp. 107-109). Such a declaration is not true for today's more complicated society, however. Ken Kobre (1980) in his textbook, Photojournalism The Professionals' Approach listed where and when a photojournalist can take pictures:
Where and When Pictures Can be Taken
Public Area
Street (Anytime)
Sidewalk (Anytime)
Airport (Anytime)
Beach (Anytime)
Park (Anytime)
Zoo (Anytime)
Train station (Anytime)
Bus station (Anytime)
In Public School
Preschool (Anytime)
Grade school (Anytime)
High school (Anytime)
Univ. campus (Anytime)
Class in session (Permission)
In Public Area--With Restrictions
Police headquarters (Restricted)
Govt. buildings (Restricted)
Courtroom (Permission)
Prison (Permission)
Legislative chambers (Permission)
In Medical Facilities
Hospital (Permission)
Rehab. center (Permission)
Emergency van (Permission)
Mental health center (Permission)
Doctor's office (Permission)
Clinic (Permission)
Private but Open-to-the-Public
Movie theater lobby (If No Objections)
Business office (If No Objections)
Hotel lobby (If No Objections)
Restaurant (If No Objections)
Casino (Restricted)
Museum (Restricted)
Shooting from Public Street into Private Area
Window of home (Anytime)
Porch (Anytime)
Lawn (Anytime)
In Private
Home (If No Objections)
Porch (If No Objections)
Lawn (If No Objections)
Apartment (If No Objections)
Hotel room (If No Objections)
Car (If No Objections)
If photographers persist in harassing their subjects, courts can further limit their actions in public and with famous persons. If courts can limit the actions of photographers making images of famous individuals, there may come a time when injured and grieving subjects are ruled off limits by sympathetic courtroom decisions as was done in some countries during the early years of photography.
Legal rights should not be the guiding principles for ethical consideration. What is legally acceptable is not always the right action to take. Staff photographer Sherry Bockwinkel of the Bellevue, Washington Journal-Gazette photographed a photojournalist who learned a lesson about the ethics of privacy. During a rope-descending performance, a Japanese acrobat fell to his death. A television videographer moved close to the scene as attempts were made to help the dancer. Suddenly a spectator angrily pushed him back. Although the news event occurred on a public sidewalk in downtown Seattle, managing editor, Jan Brandt wrote that the videographer "had moved into a sensitive area. Bockwinkel defines it as personal space, others call it invading privacy. His presence had become an intrusion seen and felt by those close to the scene and the feeling spilled over onto other photographers" ("Boundaries," 1986, p. 24).
A photographer must be aware of the privacy laws that apply to his or her jurisdiction, but that photographer must also realize that credibility, a highly valued principle, might be lost if a publicly grieving or famous person is unduly harassed.
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Originally Posted by FOLEY
