Julian Lass / www.julianlass.com

If you accept the path that respect for someone’s feelings is paramount, then you accept that suppression is the norm and we fight over what’s offensive. Free speech does involve hurt, but there’s nothing wrong with that. A free society does not legislate on the realm of beliefs or sensibilities. If it did, the state’s powers would extend to thought control. A sci-fi dystopia like Orwell’s 1984.

Just think of the Danish newspaper Jyllands-Posten lampooning the Prophet Mohammed. At the time, the media lamented this erosion of the balance between free speech and respect for others’ feelings. This is politically toxic as it makes the false assumption that having regard for others – a virtue in personal affairs – is any concern of public policy. It assumes that free speech is an ethnocentric imposition on other cultures.

The Satanic Verses affair, where Ayatollah Khomeini issued a fatwa calling for the murder of Salman Rushdie in 1989, also shows this way of thinking as farcical. Rushdie himself said ‘I feel as if I have been plunged, like Alice, into a world beyond the looking-glass, where nonsense is the only available sense.’

To realise what a farce this is, think of Freedom Fries, when you weren’t allowed to say anything unpatriotic in America after 9/11, the recent furore over the Brick Lane film and the Birmingham religious riots over a play two years back.

Privacy as it relates to the press is complicated and there are no definite answers. First, legally, what’s needed at the picture-taking stage is the consent of the person being photographed. Don McCullin called it “the atmosphere of consent”. This could be as subtle as a nod and doesn’t need to be as categorical as ‘can I take your photograph?’

You also don’t need to specifically tell your subject where the picture’s going, unless you intend it for advertising or stock, in which case your subject needs to read this on the release form. This consent can be verbal, but it’s still wise to get release forms for advertising and stock. Which means it’s all down to where or how the image will be used.

For advertising, you will need release forms for each person in a photo, even a large group. If it is a crowd and the people are unidentifiable then it is okay. For editorial publication, you don’t need release forms. However, libel and privacy injunctions are scaring editors and release forms for editorial could be a distinct future possibility.

Your subject could argue you invaded their right to privacy under the European Convention on Human Rights. In Britain, the Human Rights Act 1998 incorporated the European Convention on Human Rights into British law. Prior to this, there was no concept of privacy under common law (the courts used the other concepts such as trespass when dealing with issues of privacy, though privacy injunctions were granted prior to 1998 with regard to family cases). The Human Rights Act strengthened this concept. Article 10 of the Human Rights Act, which protects the right to freedom of expression, is also an important concept regarding the publication of photos and you can argue that it is your right to freedom of expression that allows you to publish a photo.

So far the English courts have tended to side with the media (and their freedom of expression) in all but the most intrusive photographs, which have usually been taken with long distance lenses of celebrities in non-public areas. They have taken a fairly dim view of celebrities claiming privacy rights. However, they are becoming more ‘privacy’ friendly. There has been an acceptance that actions/activities in public COULD still be considered an exercise of your private life. However, the European Court on Human Rights (to which people in this country can appeal if they lose at the House of Lords) have taken a much stronger line in protecting individuals from the publication of photos, even if these have been taken in a public place. European bodies now also consider that Article 8 includes a right to control your own personal data, including images of yourself.

The best thing is to say it is a grey area, and that the law has been evolving since the Human Rights Act. It would be good practice and ‘safer’ to seek permission if it is an individual or a group, but if it is a crowd and the people are unidentifiable then it is okay. I don’t know whether publishers like Phaidon or Thames & Hudson now require release forms to cover themselves. They shouldn’t, but injunctions like these are making people jumpy.

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