Siobhan Grey, barrister, Charter Chambers
Tate expo garners lawyers’ and artists’ views on privacy
8 November 2010
29 August 2013
26 June 2013
21 February 2014
29 April 2013
3 December 2013
By the time you read this the curtain will have fallen on ’Exposed’, the Tate Modern’s provocative photographic exhibition.
The event skilfully captured the political and cultural zeitgeist through an exploration of the themes of voyeurism, privacy and surveillance, and raised important ethical questions about the taking of illicit or covert photographs.
The exhibition featured works by celebrated artists including Henri Cartier-Bresson’s erotic images of prostitutes in a Mexican barrio, Kohei Yoshiyuki’s 1970s nocturnal images of lovers entwined in Tokyo’s parks watched furtively by salivating spectators and Ron Galella’s aggressive photographic pursuit of Jacqueline Kennedy Onassis.
Against this striking visual backdrop a symposium was staged. Chaired by Charles Haddon-Cave QC, it featured retired Law Lord Lord Hoffmann, contemporary artist Alison Jackson, former president of the FIA Max Mosley and Henry Porter, journalist on The Observer and London editor of Vanity Fair. In a groundbreaking collaboration between Tate Modern and the Honourable Society of Gray’s Inn, the worlds of art and law came together to focus on our society’s growing obsession with watching and being watched.
Lord Hoffmann brought to the evening his customary intellectual gravitas, posing two questions: should the law protect privacy?; and can the law protect privacy? The first question he answered with an unequivocal yes. The growth in technology allows for every detail of our private life to be captured. However, he argued, the privacy of our lives still needs to be protected. He considered the influence on English law of the European Convention on Human Rights and reviewed Continental legal systems that provide for privacy protection.
The second question did not yield a similarly satisfactory answer. This was for two reasons. First, the huge cost in bringing privacy proceedings tends to inhibit anyone other than the very rich
or those on conditional fee arrangements from bringing these actions. Second, once the private information that requires protection has been made public, legal action becomes an ineffective response.
Lord Hoffmann’s doubts about an effective remedy in the context of privacy cases were illustrated powerfully by Mosley, who through his own case demonstrated the redundant nature of a post-publication remedy. Although he was awarded £60,000 for the invasion of his privacy by the News of the World, the damage caused to him by that invasion was permanent, constant and worldwide. His recovered costs of £420,000, set against his actual costs of £510,000, left him £30,000 out of pocket and subjected to the exposure of the very information that the court ruled was private.
In January 2011 the European Court of Human Rights will consider Mosley’s application that the UK Government should make ’prior notification’ compulsory, which would allow for the subject of a news story to be informed in advance of publication, providing the opportunity of an application for an injunction.
Jackson then provided a cultural counterblast to the narcissism of the celebrity and voyeurism of the public.
In her work Jackson uses celebrity lookalikes posing as real stars in sometimes shocking situations.
Porter focused on surveillance by authority and stressed the need to define and set the limits of state surveillance.
A lively Q&A session produced a moving contribution from Lord Prescott, who lambasted the press for hounding families unwittingly caught in the crossfire of exposés.