By Amber Melville-Brown, David Price Solicitors and Advocates, London

Snap judgments

The area of celebrity photographs is one where the battle lines are being drawn with every new case that is either settled amicably between the parties, decided by the regulators or comes before the courts.


The British actress Sienna Miller recently settled a privacy action against the photographic agency that handled unauthorised photographs of her naked on a film set which were then published in the News of the World (Sienna Miller v NGN Limited, Xposure Photo Agency Limited and Warren Richardson). She has now also won judgment in default against the third defendant photographer who, with a tiny action of his finger pressing down on the camera shutter, started the ball rolling.


The role of the photographer in the privacy game is somewhat contradictory. On the one hand it is fundamental, in that it is his action in taking the photograph that allows for the publication in alleged invasion of privacy that can lead to a privacy claim. However, his role then switches to being largely subsidiary because, once he has sent the photographs on to the photographic agency, it is for the agency to decide if and to whom they should be made available for sale, and ultimately for the publisher to take the decision whether to publish.


While the publisher is conducting his risk assessment, assessing whether the subject has a reasonable expectation of privacy by considering matters such as the photograph’s subject matter, and how and where it was taken, the photographer has usually long since moved on to the next job. But as this case clearly evidences, he may be more ‘in the frame’ than he might think.


In October 2007, Miller was on a closed film set near Guildford filming the forthcoming ‘Hippie, Hippie Shake’. One scene involved her and a number of other actors removing all their clothes and entering a lake. A paparazzo photographer took surreptitious pictures of Miller on the film set with a long lens, despite the extra security in place given the sensitive nature of the filming. Those photographs, described by her counsel David Sherborne as ‘highly intrusive’, both in light of their subject matter and given the manner in which they were obtained, included full-frontal nude shots of Miller. The pictures were sold by the photo agency Xposure to NGN, which published them in the News of the World on 7 October.


Proceedings were immediately issued against and served on the photographic agency and the publisher for an injunction to prevent any further publication and for damages. An order for substituted service was also made in respect of the as then unknown photographer, X (via his email address). During the proceedings, the identity of the photographer, Warren Richardson and his status as a staff photographer for Xposure, became known. The first two defendants settled the claim. They agreed to pay Miller £37,500 in damages, which her legal team suggests is the largest damages award in a photographic privacy invasion case. They also agreed to deliver up the photographs to Miller’s lawyer Mark Thomson and provide undertakings to the court against further publication.


However, while the court was told that the photographer had been served with the court proceedings, had been advised of the requirement to serve an acknowledgement of service and to seek legal advice, he did nothing. Given that he failed to deliver up the photographs retained by him, Miller was concerned about the possibility of re-publication. Accordingly, she sought judgment in default against him. This was granted by Judge Eady on 17 January 2008. Damages are to be assessed in due course.


Actions for privacy invasion or breach of confidence are coming thick and fast and the grant of a judgment in default is not usually big news. But here the default judgment was not against the photographic agency or the publisher, who decided to settle the action quickly, but against the photographer himself. In defamation cases, the initial source and instigator of a defamatory statement may be sued and be liable for any further publications of his defamatory statement where they are the natural and foreseeable consequence of his original publication.


In the case of invasions of privacy by way of photographs, it is generally accepted that the invasion of privacy does not take place at the moment that the camera shutter is closed, but when the material over which the subject has a reasonable expectation of privacy is published. So, will the photographer also be liable for any future publications by, say, a national newspaper where they are the natural and foreseeable consequence of his having taken the photograph?


In this case, it was the photographer’s failure to comply with the rules of the court and to serve an acknowledgment of service or a defence that allowed the claimant to obtain judgment in default. Accordingly, these arguments on publication and liability were not considered by the court. But it is likely that at some point they will be, and photographers will have to wait to see whether the court finds them equally liable for their role in the privacy invasion as those who publish their works to the public.


When photographs of actors and actresses in compromising positions can generate fees of significant value, it is hard to imagine that the naked ambition of the photographer to get his work seen and to earn a fee will not override any fear of a potential legal action. But it is probably inadvisable for him to close his mind to the possibility altogether.