Thomas Bennett

On Friday 25 June 2021, British tabloid The Sun published pictures of the UK Health Secretary, Matt Hancock, kissing Gina Coladangelo in his office at the Department of Health. These pictures were, it seems, captured by a CCTV camera in the office and leaked by person(s) unknown to the newspaper. The pictures were soon joined on The Sun’s website by a video clip (seemingly from the same camera). The clip shows Hancock and Coladangelo in what might be described as a passionate embrace. The footage lasts just over one minute and remains online, including on The Sun’s Youtube channel.

The pictures and footage caused instant controversy due to the fact that both Hancock and Coladangelo are married to other people, and due to the fact that Hancock brought Coladangelo into the Department for Health during the pandemic, where after a period of unpaid work she took on a paid role (taxpayer funded) in the autumn of 2020. These facts raise questions of both a moral and political nature. It is also clear that the actions of Hancock and Coladangelo breached COVID guidelines that Hancock had himself played a key role in designing and promoting during the pandemic. This raised the politically toxic spectre of hypocrisy that led to his resignation on Saturday 26 June.

It has been suggested that The Sun’s publication of the pictures and/or video raise privacy concerns, in respect of their impact on Hancock, Coladangelo, and their families. One blog post, on Inforrm – the UK’s leading Media Law blog, suggests that the publication of the pictures and video are legally problematic. The story – the fact of the affair – is said to be of clear public interest (given the political and moral questions it raises) and thus the publication of the fact of the affair is said to be justifiable. The post, however, treats the pictures and video differently. The video is said to be “particularly intrusive” and “likely to have an adverse impact on the families of both individuals.” Moreover, the post argues that “[i]ts publication was not necessary for any of the “public interest” aspects of the story and there is a strong argument that it should not have been published.”

The extent to which information that “colours” a story in order to draw readers’ attention to its public interest aspects may be lawfully published even if that additional information intrudes upon individuals’ privacy remains a matter of controversy in this field of law. The Supreme Court in Flood v Times Newspapers Ltd [2012] 2 AC 273 held that the publication of the name of a police officer suspected of corruption was permissible in order to make vivid a story about police corruption, even though the named officer was ultimately cleared of any wrongdoing. Essentially, the ruling grants editors a fairly wide margin of appreciation in deciding how best to present stories of public interest.

Certainly, however, the courts have traditionally been much quicker to enjoin or award damages for the publication of photographs and video that violate the privacy of individuals than they have been to do the same for bare facts. The post on Inforrm rightly cites authority for this proposition and there is plenty. The Theakston case ([2002] EMLR 398), in which the claimant was photographed leaving a brothel, is a classic example; the fact of the claimant visiting the brothel was found to be justifiable, but the pictures of him leaving were not. As Rebecca Moosavian has noted, English law has gotten itself into a place where it regards photographs/video as more intrusive and thus more damaging to privacy than bare facts.[1] This is the state of affairs to which I want to draw attention in this post and to offer a brief critique.

A number of justifications may be given for treating photographs/video as representing more serious violations of privacy than written accounts describing the same incidents. However, if we scratch under the surface of these justifications, they are weaker than they initially appear. Principally, photographs are thought to capture details words alone cannot convey. The old adage that “a picture paints a thousand words” is particularly apt here, as it seems this is the position that English courts have formally adopted as gospel. Photographs are seen as more intrusive because they convey the truth of what happened in a detailed, visceral fashion. It is one thing to describe Theakston’s flushed, post-brothel looks; it is thought to be quite another to publish photographs that enable viewers actually to see them. Photographs/video are seen as intrusive because they place the viewer at the scene. The viewer becomes a voyeur, seeing things that, in the ordinary course of life, they would not have been in a position to see.

Translating this into established privacy theory is not terribly difficult. The notion that photographs/video place the viewer at the scene as a voyeur calls to mind a notion of privacy as a right to limit others’ access to one’s self – a notion associated with Ruth Gavison[2] and, more recently (in modified form), Nicole Moreham.[3] Implicit in this is the idea that photographs/video transmit to the viewer the scene as if they (the viewer) were there – that the pictures/video convey the unvarnished truth of what occurred, and that that truth is what cuts the victim deepest.

We can see from the Theakston case and its successors[4] that English law has taken a stance that places enormous significance on images – far more than it places on written accounts of the content of those images. This is a phenomenon that we can identify as “visuocentrism”, and it likely reflects the significance with which society at large treats photographs. Undeniably, we live in a visuocentric society in which imagery plays a central role – arguably an increasingly central role – in our daily lives. Increasingly, we see images as more powerful than words (consider, for example, the extent to which emojis have replaced words in contemporary communications). At even a surface level of analysis, we can immediately see that this visuocentrism is problematic. Images purport to convey unvarnished truth. It is easy to forget that, in reality, all images – including photographs and video – are constructed. Photographs do not simply capture their subject but instead do so in a way of the photographer’s choosing. Photographers make choices on composition, lighting, perspective and so forth. Publishers likewise make choices, choosing particular photographs and setting them in a particular context. Photographs capture but a snapshot of their subject, in a particular light (literally), at a particular time – frozen for the length of time that it took for the camera shutter to open and shut. The same applies to video footage.

When we press the analysis further and to greater depths, the trappings of visuocentrism become more apparent still. The philosopher and poet, Samuel Taylor Coleridge (1772-1834), cautioned strongly that visuocentrism is problematic. For the assumption underpinning visuocentrism is that images capture the essence of their subject fully and truthfully. Coleridge’s conception of the “Fancy” – the image-forming power which is related to but distinct from imagination – brings this into focus. For the Fancy, through its image-forming, seeks to “fix” the objects of its attention. But what the Fancy – and images – really do is to “fix” their subject unnaturally, acting like “the Gorgon Head, which looked death into every thing”. [5] Images present living objects without life, frozen in the moment or moments in which the image was made. The subject is not truly captured in the image – what is captured is something far simpler. It is the subject minus its life – minus much of that which makes it what it is. The image reduces its subject. Images thus present us with a reductionist re-presentation of a far more complex reality. The grainy, low-resolution, silent CCTV footage of a man kissing a woman has not truly captured Matt Hancock, in all his human complexity. It has not penetrated deeply into his soul and exposed his innermost self to the world. It actually conveys very limited unvarnished truth. The limited truth that it conveys is the bare fact of his apparent affair with Gina Coladangelo. It is evidence of a factual assertion’s veracity that could be made just as accurately in writing. In other words, the CCTV pictures and video capture little more than the bare fact of the affair, but are said nonetheless to be significantly more intrusive than the words conveying that same fact.

For Coleridge, whilst images were limited in what they could convey, words were not so limited. Granted, he had in mind poetry rather than journalism. But the point here is that our old adage may have things very wrong. It may be that a few words can paint something at least as detailed as a thousand pictures (or frames in a video). For the damage done to Hancock’s career comes not from the pictures of him kissing a woman in his office, but from the fact he did this in breach of guidelines that he designed, from the fact he did this whilst both he and her were married to others, and from the fact that it is unclear whether he appointed her to her role improperly. The impact upon his privacy is at least as great from the report as from the footage. Likewise, the impact of publicity on his family is as much the fruit of the bare facts of his actions as from the images proving that those actions occurred as described.

This imbroglio presents us with a microcosm of English privacy law. The courts attribute a great deal more significance to photographs/video than to written accounts of private activities. Yet there are reasons to believe this imbalance is unsound in principle. Photographs/video do not truly capture the essence of their subject. They cannot violate the integrity of the subject’s self because they do not capture the subject’s self. They simply provide evidence that a particular thing happened in a particular moment.

None of this, of course, should be taken as suggesting that photographs/video of a person cannot intrude upon that person’s privacy. They can, and do. And that intrusion can be significant and harmful. But the notion that they necessarily do so to a greater extent than written accounts of the same activities seems unsound. It is based on the notion that images convey more and greater truth than words. The reality is, however, that Matt Hancock’s privacy was violated (no doubt justifiably) by the publication of words describing his actions every bit as much, if not more, as it was by grainy CCTV images of a man in low-resolution apparently kissing a woman. The essence of Hancock – as a duplicitous hypocrite – was conveyed just as much by the written reports as by the images, if not more so.

The point, then, is this. English privacy law privileges photographic images by treating them reflexively as if they are always inherently more intrusive than written accounts of the behaviour they evidence. This privileges a reductionist representation of individuals over the potentially much more detailed accounts of their actions that can be achieved in writing. It would behove us to pause and think seriously about whether this privileging is truly justifiable. For when we do so, we may well discover that it is not.

 

[1] Rebecca Moosavian, ‘Stealing ‘souls’? Article 8 and photographic intrusion’ (2018) 69(4) NILQ 531.

[2] Ruth Gavison, ‘Privacy and the Limits of Law’ (1980) 89 Yale LJ 421.

[3] NA Moreham, ‘Privacy in the Common Law: A Doctrinal and Theoretical Analysis’ (2005) 121 LQR 628.

[4] E.g. Campbell v MGN [2004] 2 AC 457 (in which pictures of the claimant leaving a Narcotics Anonymous meeting were admitted by the defendant to violate her privacy, but the written descriptions were defended); AAA v Associated Newspapers [2013] EWCA Civ 554 (in which the Court of Appeal upheld the High Court’s decision to award damages in respect of photographs published of the claimant, but not to make such an award (or grant injunctive relief) in respect of written allegations pertaining to the claimant’s paternity).

[5] Samuel Taylor Coleridge, The Notebooks of Samuel Taylor Coleridge, vol 3 (Kathleen Coburn (ed) Princeton University Press 1973) 4066.

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