Libel and Invasion of Privacy
Libel means the defamation of character that occurs when a person’s reputation is damaged by showing that person in a way that holds him or her up to unwarranted hatred, ridicule, or contempt. If a photograph represents the truth of the situation, and no slander plays a part, libel has not reared its ugly head. Be aware also that the camera does not always necessarily tell the truth. The camera does not always see what the eye sees. And displays of photographs, i.e., their contexts, often dictate what constitutes libel.
For example, if you photograph a woman in a lightly colored bathing suit and then produce the photograph so that she appears nude, you could subject yourself to a libel suit. If you misuse or improperly identify a person in a photograph, you may find yourself in trouble as well. Imagine your own anger if someone took a picture of you innocently embracing your daughter and used the photograph to insinuate child abuse. In less extreme cases, you still need to maintain accuracy—in captions and in left-to-right identifications of all people involved in the picture. Protect yourself.
Invasions of Privacy
What limits you from snapping a picture of two lovers embracing through their romantic bay window? What stops you from capturing the exact moment an unknown woman gives birth on the subway? Implied right to privacy. While there is not a right to privacy law in the USA, the Supreme Court found a right to privacy, derived from penumbras of other explicitly stated constitutional protections. The Court used the personal protections expressly stated in the First, Third, Fourth, Fifth, and Ninth Amendments to find that there is an implied right to privacy in the Constitution of the United States.
The modern legal theory of the right of privacy holds that every person holds the right not to be bothered – have their picture publicized or name published without written consent. This law seeks to protect those persons who wish to avoid undesirable publicity. So it is always helpful to have a Model Release Form available for a private person to sign when covering any event.
An individual forfeits his or her rights to privacy once he or she becomes a public figure – Governor, Congressman, Fire Chief, etc. Also, a person may not sue for protection of rights of privacy if the matter at hand involves real public concern or legitimate news. In the famous O.J. Simpson case, the accused Simpson drove a white van around for hours. Not only was he a public figure—celebrity/sports—but he also created a newsworthy situation.
If a person consents in writing to the use of a picture, no suit can follow. Be aware, however, that unlike libel, the truth in the matter of privacy is irrelevant. Lack of malice on the part of the photographer makes no defense.
Use the following guides to help you determine appropriate uses:
1. You should encounter no problems if you gear your photograph towards current news purposes or if the picture will be used in an informative and educational story in which the public holds an interest. However, if the photograph is used in a strained connection, if it has no legitimate relation to the caption or the text, if it is used to promote the sales of a publication, or if it is used in fiction or advertising, then a carefully worded release must be signed by the subject.
2. It should be noted that the cover of a magazine is considered as trade or an advertisement, and a written release here is very important. The photographer who makes feature pictures obviously may be more likely to invade the privacy of individuals than one who does news photography. The photographer who goes into files and selects old photographs to be used in new contexts may also be guilty of violating the law. If you are in doubt about any photograph, contact your attorney for advice. You may contact IFPO for various release forms.
In closing, always keep in mind that if you doubt the ethics of your behavior—change your behavior. If you come up with particular questions or concerns, research these so that you do not unwittingly breach any ethical standards. Treat people fairly and honestly, represent the truth of the situation, and avoid invasions of privacy. Use your instinct and a few tips from professionals, and you’re well on your way to a solid career.