Public Image (Un)Limited: Privacy Rights of the Photographic Subject in England and New York Compared

This chapter undertakes a detailed comparative analysis of the treatment of photographs of individuals in the privacy laws of England and the state of New York. Section 1 outlines the respective background, context and framework of both jurisdictions. In English law certain privacy protections for the subject of a photograph are provided by misuse of private information (MPI), a common law tort developed by judges in the 2000s following the introduction of the European Convention of Human Rights into English law. New York privacy law is, in contrast, statutory and has been operative since the start of the twentieth century. This chapter proceeds to identify striking disparities in privacy protections for photographed individuals in NY and English law. It finds that though NY privacy law accommodates commercial interests in one’s image more readily than English MPI, NY protection for dignity-based claims in image is far weaker than English law, even when such claims appear cogent. It details two related reasons for such differences. First, as section 2 explains, in contrast to English MPI, the NY statutory privacy right is drafted in narrow terms so only select uses of one’s photograph are prohibited, and expansive ‘newsworthy’ exceptions are available for media defendants. Second, as section 3 argues, unlike English courts, NY courts undertake negligible scrutiny of privacy claims regarding photographic material. The respective courts take diverging approaches to four issues, including street-based photography, the position of public figures and children and the photographic medium itself. Ultimately, in this context the widely noted differences between English–European and US privacy laws are particularly pronounced in relation to photographs.