Free Speech + Fair Use ≠ Free Use. Free Speech + Fair Dealing → Fair Speech

4th January 2016 By Dr Angela Adrian

In 2014, Paul Weller won £10,000 in damages against Associated Newspapers (which owns the Daily Mail) for publishing seven unpixellated photographs of his children online at the Daily Mail website (Weller v Associated Newspapers [2014] EWHC 1163 (QB)). Associated Newspapers then appealed this holding, Weller & Ors v Associated Newspapers Limited [2015] EWCA Civ 1176, which was dismissed and barred from further appeal to the Supreme Court. Associated Newspaper claimed that this decision created an “image right” (to date, image rights are not recognised in English law) which would have “wide-ranging and serious consequences not only for local, national and international digital journalism but for anyone posting pictures of children on social networks” (Weller). A publisher’s ability to print images without the express consent of the subject could be severely restricted.

Is that so unreasonable? The Guernsey Image Right provides an answer to this dilemma.

“Image rights” can be described as the commercial appropriation or exploitation of a person’s identity and associated images linked to that person. Had Paul Weller registered his children’s images with the Bailiwick of Guernsey, it would have been unlikely that he would have needed to go to court as there is clear infringement of the image rights of his children. In the Harvard Law Review article by Warren and Brandeis (1890) entitled The Right to Privacy, the argument that the protection afforded by copyright law in particular circumstances was merely the application of a more general right to privacy. Copyright law allows every individual the right to determine the extent and manner in which their thoughts might be communicated. This right exists no matter what the method of expression is, the nature or value of those thoughts, or the quality of expression. In each case, an individual is entitled to decide whether what was inherently their own should be given to the public.

Some argue that privacy and publicity rights reflect separate and distinct interests from copyright interests. While copyright protects the copyright holder’s property rights in the work or intellectual creation, privacy and publicity rights protect the interests of the individual who may be the subject of the work or intellectual creation. The case of Prince Albert v Strange ((1849) 2 DeG & Sm 652) should be reconsidered. “The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of inviolate personality.” (Id, Knight-Bruce V-C) Thus, argued Warren and Brandeis, the law affords a principle which could be invoked to protect the privacy of the individual from invasion by the over-intrusive press, by photographers or by the use of modern devices for recording and reproduction. Questions regarding privacy and publicity occur because two or more people are usually involved in the work (e.g., photographer and subject). Likewise, issues regarding the ease with which various media in digital format can be reused, emerge frequently.

The differences among privacy rights, publicity rights, and copyright are at the forefront of the Weller case: A celebrity gossip newspaper wishes to use a photograph for in its paper and website. The paper approaches the paparazzi photographer, who holds the copyright in the photograph, and negotiates a license to use the photograph. The paper must then determine the relationship between the paparazzi photographer and the subject of the photograph, Paul Weller and his family. A formal relationship would involve a signed release form by the subject in favour of the photographer. This would allow the photographer to license the use of the photograph for any and all uses. Further, it would waive the rights of the subject of the photograph. In this case, no formal relationship existed. As such, the newspaper must seek permission from Paul Weller because he has retained both privacy and publicity rights in the use of their likeness. This permission is unlikely as Paul Weller had specifically requested the photographer to cease and desist taking photos. Furthermore, the privacy right is personal in character. His likeness or that of his family should not be presented to the public eye without his consent. He has a right to be left alone. Paul Weller’s publicity right is that his image may not be commercially exploited without his consent and potentially compensation. The Guernsey image right has captured these rights in one cause of action in a statutory manner. Image rights have been designated as property rights and not just personal rights. As such, a somewhat different balancing analysis could have been used – fair dealing v free speech instead of privacy v free speech.

However, the Weller case was decided according to The European Convention on Human Rights and the balancing act between Article 8, the right to privacy, and Article 10, which enshrines the right to a free media. Neither Article has priority over the other; however when there is a conflict, “an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary” (In re S (A Child) ([2005] 1 AC 593). The Article 10 rights of anyone who would be restrained from publishing the specified category of information must be taken into consideration (X v Persons Unknown [2009] EMLR 290) in every case. Likewise, when balancing rights, the Court must account for the Article 8 rights of anyone whose private lives will be affected by the publication (ETK v News Group Newspapers [2011] EWCA Civ 439), especially the rights of any children who might be affected by the publication.

In conclusion, when the final balance is achieved in favour of the individual, publication will be an infringement of their Article 8 rights. If the balance is attained in favour of the publisher, there would be no infringement due to a combination of Articles 8(2) and 10. In each case “balance” is determined by weighing the competing rights in the facts of the case. In Guernsey, the individual’s right to determine how they present themselves to the world, or not, is “balanced” against the public’s need for news regarding that individual.