Private Views: Right Problem, Wrong Law
All too often artists and arts professionals look at a controversial image, conclude that the Law, specifically copyright law, must have something to say about it, must provide an answer. In the case of the photography of Maurice Blaussyld or Andres Serrano they are largely wrong on both counts.
Maurice Blaussyld photographs autopsy subjects; Andres Serrano photographs mortuary subjects. Legally speaking, an artist/photographer working in this vein in the UK could encounter similar problems as those encountered by Benetton, which advertised clothing using photographs of AIDS victims and new born babies, or by the photographer of the leotard-clad Princess of Wales exercising in her private gymnasium or, perhaps more obviously, by the photographer of Sir Matt Busby, former manager of Manchester United, as he lay dead in his coffin. A common legal thread ties all of these images together: the law of privacy or, in the UK, the absence of a law of privacy.
Courts in England and Wales have time after time said that individuals have no right to privacy. Lord Bernstein found this to his cost when he recently tried unsuccessfully to claim damages from a firm of photographers who, without his consent, took aerial shots of his home. Photographers working in the UK are largely free to photograph and display photographs of whatever they want, regardless of the hurt and distress that may be caused as long as there is no defamation. In other countries the situation is different. Ordinary people in the United States have a legal right to protect themselves against unreasonable intrusions to their privacy and celebrities have a right to control the commercial exploitation of their personalities. Both Germany and France have privacy laws and indeed the European Convention on Human Rights recognises that ‘everyone has a right to respect for his private and family life, his home and correspondence’.
Media industry bodies, including the Press Complaints Commission (PCC) and the Advertising Standards Agency, exert some control over what images can be shown by those industries. The code seeks to ensure that advertisements are ‘legal, decent, honest and truthful’. The much criticised PCC also has a code which states intrusion and enquiries into an individual’s private life without his or her consent are ‘not generally acceptable and publication can only be justified when in the public interest’.
In recent years public outcry over the excesses of the press has led to repeated calls for the introduction of privacy legislation in the UK. MPs, Select Committees and civil servants have all been busy introducing private members’ bills, publishing reports (the Calcutt Report, the Younger Report) and consultation papers. In July 1993, the Lord Chancellor’s Department proposed the introduction of a new law of privacy which would allow people to sue for breaches of privacy which cause them substantial distress. A person’s privacy would also cover their family and personal relationships. If legislation is enacted it is not clear what effect it might have on the work of an artist such as Maurice Blaussyld. His subjects, being dead, cannot themselves suffer distress and it seems unlikely that a dead person’s estate would be able to sue. Any distress suffered would be by the family and friends of the deceased; the question is would they be able to sue? The answer is possibly, but only if their own privacy, their own right to be left alone, is breached by the taking and publication of photographs.
There has been much talk and little action on a law of privacy. This may soon change. A new bill, The Photographs and Films Unauthorised Citation Use Bill, 1994, has just had its second reading in the House of Lords. Under this bill, a person who is the subject of a photograph without his or her consent or knowledge will have to right to prevent the publication or display of the photograph. How this would apply to a dead person is still unclear – possibly the artist/photographer would have to seek permission from the deceased’s next-of-kin. As long as this is done it seems likely that an artist like Maurice Blaussyld or Andres Serrano will still be able to work and exhibit legally in the UK.
© Henry Lydiate 1994
NOTE (added November 2009): The Photographs and Films Unauthorised Citation Use Bill, 1994, was not enacted into UK law, which chiefly offers privacy protection to living people through the law of confidentiality and the Human Rights Act, 1998.