Stare. It is the way to educate your eye and more. Stare, pry, listen, eavesdrop. Die knowing something. You will not be here long.
— Walker Evans, c. 1960
A recent exhibition of street photography at the National Gallery of Art in Washington, DC, titled ‘The Streets of New York’ featured two images from the series ‘Subway Portraits’ by photographer Walker Evans (1903-75). As folklore has it, when Evans was making his photographs in the 1930s and 1940s he feared complaints about privacy violations and even lawsuits from his unwitting subjects and it was for this reason that he waited some twenty years to publish the series. But when it was published in 1966 in a photo-book, Many Are Called, there was praise for Evans’ art in reflecting the essence of people of a certain time and age rather than lawsuits for his artifice in using a camera hidden under his coat to capture intimate, unstaged portraits of subway riders. His capacity to ‘see the present as if it were already the past’ was distinctive and unique, noted Jeff Rosenheim, Curator of Photography at the Metropolitan Museum of Art in New York, in an interview given on the photographer’s work in 2000.¹ When I viewed the work exhibited at the National Gallery in December 2006, I was struck by the thought that in today’s world of hyper-sensitivity about privacy Evans’ supposed fears of legal action may well be realised.
Celebrities, certainly, have scored a number of successes recently in legal battles against media intrusions on their privacy. These cases include Campbell v MGN Ltd, in which supermodel Naomi Campbell, who had been covertly snapped outside a Narcotics Anonymous meeting in London, successfully claimed breach of confidence and received a small amount of damages from the Mirror for publishing the photographs; Douglas v Hello! Ltd,² in which husband-and-wife acting team Michael Douglas and Catherine Zeta Jones received £3750 each for their distress over photographs taken at their wedding; and the German case of Von Hannover v Germany³ in which the European Court of Human Rights held that scenes of Princess Caroline’s meeting friends in cafes were part of her ‘private life’ and could be protected from publication under the European Convention on Human Rights.
Even non-celebrities have occasionally sought and succeeded in claims for privacy violations, relying on breach of confidence and defamation laws and new and emerging torts such as harassment and intentional infliction of emotional distress—to which some Australian courts have added (and the High Court has not yet ruled out), ‘privacy’ as a new tort or collection of torts.⁴ And, although it can be argued that being in a public place diminishes a privacy claim (it certainly can make statutory actions hard to establish unless there is a voyeuristic element), Campbell and Von Hannover show that, even in public, we are all entitled to certain ‘moments offstage’, to adapt a phrase of sociologist Erving Goffman.⁵
In Australia public sympathy seems to be largely in favour of privacy over freedom of expression, if a February 2007 posting ‘Talking Pictures: Photography Is Not a Crime’ by Sydney-based photographer John Reid and subsequent blog discussion on the Sydney Morning Herald website is anything to go by.⁶ In the United States, especially New York, claims for artistic expression have tended to prevail in situations of legal conflict, bolstered by a liberal interpretation of the First Amendment’s privilege for freedom of expression. As recently as August 2007 there was a successful public protest in New York City against new rules proposed by the Mayor’s Office of Film, Theater and Broadcasting that (among other things) would have required groups of two or more people using a camera in a public place for longer than half an hour to apply for a permit and take out insurance.⁷ Yet there are also signs that even in this artistic cosmopolis attitudes and law have begun to move in a more privacy-sensitive direction.
The notorious case of Nussenzweig v diCorcia concerned photographer Philip-Lorca diCorcia, who had created a series of unstaged images of passers-by in Times Square (relying on the busy activity of the street to draw his subjects’ attention away from his tripod, strobe light and makeshift studio concealed by industrial scaffolding). Seventeen of the thousands of images captured this way were exhibited at a gallery, a photo-book titled Heads was published in 2001, and limited prints were sold through the Pace/Macgill Gallery for US$20,000-30,000 each. Erno Nussenzweig, an Orthodox Hasidic Jew and a member of the Klausenberg sect, which prohibits ‘graven images’, discovered that one photograph was of him and ten prints of it had been sold for US$240,000. He claimed that his privacy had been breached in violation of section 51 of the New York Civil Rights Law, which prohibits use (without consent) of ‘the name, portrait or picture of any living person’ for the purposes of advertising or trade.
Arguing that the photograph was expressive, not commercial, and so was protected under the First Amendment and exempt from the Civil Rights Law, DiCorcia succeeded in the New York Supreme Court and Nussenzweig lost his appeal in March 2007 (although leave to further appeal has since been granted).⁸ For a privacy lawyer this case was interesting because the plaintiff went to the trouble of bringing a legal action based on privacy against a street photographer; and it remains of active interest because three of the five judges in the Appellate Division decided the case solely on the basis that Nussenzweig’s claim was time-barred. Certainly, it is still open to argument that a street photographer is not necessarily, or always, protected by the First Amendment.
It is worth noting that some US Supreme Court justices have taken the position that First Amendment values extend to ‘private’ expression, commenting in one case (Bartnicki v Vopper) that ‘the uninhibited exchange of ideas and information among private parties’ is ‘essential if citizens are to think and act constructively’, but acknowledging that when interests in private and public sides of the constitutional calculus’.⁹ The Bartnicki case is quite different from that of Nussenzweig, revolving as it does around intercepted conversations broadcast on a radio talk show. But as privacy scholar Eric Barendt points out, the broader implication of the Supreme Court justices’ comments is that it is too simple to treat such issues as being ‘a straight conflict between free speech, on the one hand, and privacy (or confidentiality) on the other’.¹⁰ If their reasoning is extended to Nussenzweig, it becomes clear that, on the one hand, there is the private person’s interest in limited self-revelation, here to a transient audience in a busy public place, an interest potentially shared by others who (if their interests were not legally vindicated) might curtail their activities in order to control the manner and extent of their self-expression; on the other hand, there is the artist’s interest in freedom of artistic expression, an interest shared with the artist’s audiences. Bartnicki suggests that proper resolution of these interests lies in the furtherance of constructive social intercourse. Logically, then, a court faced with a Nussenzweig-type scenario should carefully consider the respective contributions of artistic and private forms of expression to social discourse, debate and understanding.
What does this signify outside the United States? To be sure, our judges might be wary of assessing and weighing artistic merits. But if, as seems to be a feature now of Anglo-European privacy decisions, judges are capable of assessing the contribution of a claimed privacy interest to human dignity and flourishing, then surely they are also capable of assessing the particular contribution that art can make to our understanding of the human condition. The human condition is, after all, what diCorcia, as Walker Evans before him, was intent on uncovering in his unstaged portraits—removing the mask that, as James Agee put it in his introduction to Many Are Called, is ‘before every other human being, no matter what intimate trust’.¹¹
In the future, perhaps, as courts engage in more nuanced discussions about privacy and free speech we shall find closer attention paid to these concerns. In particular, Australian judges, who are normally quite utilitarian on policy matters, might extend their utilitarianism to questions of artistic expression and accept there is value in a photograph’s capacity to engage and instruct a range of audiences. Weighed against this, privacy interests may count for little. It depends in part on the importance attributed to the subject’s lack of consent. Possibly, my feeling that Walker Evans might have sought consent from his subjects—at least once their photographs were taken—helps explain my residual unease about privacy on viewing his ‘Subway Portraits’. On the other hand, as a publicity-shy private person, I can see that consent to publication of an intimate unstaged portrait could well be difficult to obtain and I am not entirely sure that publication should depend on it.
This essay was written with the support of a 2007 Melbourne Research Office grant for the project ‘A Legal History of Opinionated Journalism’. For helpful comments on content or style, I am grateful to my colleagues at the Law Faculty, the University of Melbourne, and to Jane Richardson and Thomas Vranken.
2 (2006) QB 125. An appeal by another claimant, OK!, which had been sold exclusive rights to cover the wedding, against its nil award of damages, succeeded in the House of Lords: Douglas and others v Hello! Ltd  UKHL 21.
3 (2005) 40 EHRR1.
4 See Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199.
5 In The Presentation of Self in Everyday Life (New York, 1959), pp. 56-7. Cf. Alan Westin, Privacy and Freedom (New York, 1967), p. 35; Nicole Moreham, ‘Privacy in Public Places’, Cambridge Law Journal, vol. 65 (2006), pp. 606, 622 (note 55).
7 Diane Cardwell, ‘After protests, city agrees to rewrite proposed rules on photography permits’, New York Times, 4 August 2007.
8 2006 NY Slip Op 50171U; 814 NYS 2d 891(SC of NY, 8 February 2006) and 38 AD 3d 339; 832 NYS 2d 510 (NY App Div, 20 March 2007); leave to appeal to Court of Appeals, 19 June 2007.
9 532 US 514 (2001), Stevens J for the court at 532-3 (emphasis in original).
10 ‘Privacy and Freedom of Speech’, in Andrew Kenyon and Megan Richardson (eds), New Dimensions in Privacy Law: International and Comparative Perspectives (Cambridge, 2006), p. 25.
11 Many Are Called (Boston, 1966; reissued by Metropolitan Museum of Art/Yale University Press, 2004), p. 16.