Two recent cases, separated by an ocean and governed by somewhat disparate American and European concepts, nonetheless have found common ground in the balance between free expression and privacy rights, on an increasingly unsettling battlefield.
On Aug. 5, a trial court in New York in Foster v. Svenson dismissed an action against photographer Arne Svenson brought by the parents of children whom Svenson photographed. Svenson, using a telephoto lens from his Manhattan apartment building, shot through the windows of a neighboring apartment building. His photographs included children and adults, taken without their knowledge or permission, and were exhibited at an art gallery in an exhibit titled “The Neighbors.” At least one image of the plaintiff’s children showed an identifiable face, and showed “partially clad bodies.”
The trial court rejected their claim for an injunction under New York’s Civil Rights Law that precludes the use of images of a living person without permission for advertising or trade purposes, on the basis that the photographs were used for artistic purposes “because they promote the enjoyment of art in the form of a displayed exhibition.” Finding that art is free speech and protected by the First Amendment, the court held that privacy rights yield to newsworthy events. The court found, among other things, that “The Neighbors” was “a legitimate news item because cultural attractions are matters of public and consumer interest.” Plaintiffs have appealed.
On Sept. 20, the European Court of Human Rights in von Hannover v. Germany refused to enjoin the German magazine 7 Tage from publishing photographs of Monaco’s Princess Caroline and her husband Prince Ernst August in their vacation home in Kenya, also taken without permission. This was the third time the ECHR had ruled on matters relating to the princess in her legal battles against other media outlets. In this case, the ECHR found no violation of Article 8 of the European Convention on Human Rights, which recites that “everyone has the right to respect for his private and family life, his home and his correspondence.”
Caroline unsuccessfully had sought an injunction in the German courts; when the case reached the Federal Constitutional Court, it was held that her claims of privacy were trumped by freedom of expression as found in the convention’s Article 10 that afforded rights of freedom of expression. The ECHR found that the German court had properly considered the relevant factors regarding Articles 8 and 10, and did not disturb that judgment. American notions of “public figure” versus “private figure” were not relevant to this analysis; indeed, in contrast perhaps to the Princess Caroline cases, J.K. Rowling prevailed on privacy grounds in 2008 under the Convention on Human Rights as against a magazine publishing pictures of her and her husband with their young son in a stroller.
The cases also highlight the stark differences stemming from where the acts occurred. The Svenson case was decided under the particular wording and jurisprudence surrounding the New York statute. In New Jersey, privacy claims remain a matter of common law, see Canessa v. Kislak, 97 N.J. Super. 327 (Law Div. 1967), and N.J.S.A. 2C:18-3(c) renders it a fourth-degree crime when a person “peers into a window or other opening of a dwelling…for the purpose of invading the privacy of another person and under circumstances in which a reasonable person…would not expect to be observed.” Had Svenson been in Germany, Section 201a of the German Criminal Code would have subjected him to one to five years in prison for “unlawfully creat[ing] or transmit[ting] pictures of another person located in a dwelling or a room especially protected from view and thereby violat[ing] their intimate privacy.”
We are not talking about cameras used in surveillance, as addressed this month in Soliman v. The Kushner Companies Inc., or CCTV cameras. Rather, these cases bring into focus the line being drawn between freedom of expression as stated in the First Amendment and growing (if inconsistent) statutory and common-law protections of privacy. The issue is complicated in a world of liquid borders, immediate transmission of imagery and different starting points in different legal systems.
We may have a visceral reaction of empathy for the plaintiffs in the Svenson case or Princess Caroline. We may not think that taking a photograph is particularly important when balanced against such things. However, it is not the fact of the line being drawn, but its mobility. Svenson may be correct under the New York statute but might have been decided differently in New Jersey.
The reaction to Svenson and similar cases should not be an automatic rejection of artistic or newsworthy expression in favor of privacy as a default position. The issue is not whether to draw the line, but where it is drawn. At least within the U.S., there is wide divergence in terms of reaction to the conflict between privacy and expression. The New Jersey Legislature should consider codification of its privacy laws that accommodates the balance, and the Uniform Law Commission should also consider taking up this issue.