What is privacy? Dictionary definition - The word privacy is
derived from the Latin “privatus” belonging to oneself and ultimately
from “privus” separate (Guralnik DB 1978).
The three meanings given are:
- The quality or condition of being private: withdrawal from public view.
- Secrecy (told in strict privacy).
- One’s private life or personal affairs [an invasion of one’s privacy.
How we see privacy is constantly changing from our personal
feelings to European legislation. Something we dreaded revealing could
become absolutely necessary in a medical context.
How we control privacy can often be divided into two groups:
Our bodies
- Changing rooms, curtains and booths
- Seclusion
- Disguises
- Locked doors
- Bathrobes/rooms
- Time to be by myself
Information about us
- What we do or do not do at home
- Habits
- Discretion about our own private business
- Salaries sealed envelopes
- Relationships
- Age/sexuality
Privacy and copyright
Until recently the only law relating to photographs and privacy was the Copyright, Designs and Patents Act 1988,
this applies to photographs taken after 31st July 1989 when the Act
received its Royal assent, and which gives the commissioner of
photographs for private or domestic purposes the moral right (Berkeley
A 1989) to decide the extent of their use. Section 85 ( 1 )
A person who for private and domestic purposes commissions the
taking of a photograph or making of a film .... has the right not to
have
- copies issued to the public
- copies exhibited or shown in public
- copies broadcast or included in a cable programme.
This is directed at photographers who take photographs for a
portrait, wedding group etc. who may seek to publish it at a later date
(Rubenstein J 1990, Swan C 1991). There is at present no other
restriction on the use of photographic copyright by its owner.
Copyright Act 1956 - Commissioner of photographs owns copyright in this situation and can sue for breach of copyright.
Copyright, Designs & Patents Act 1988 - Photographer owns
copyright, commissioner for private or domestic purposes has right to
sue for breach of privacy.
Respecting privacyThe interaction between the patient and
photographer involves the conveying of information, use of information
and care of the patients physical and mental well-being. Where the
patient is within an organisation like a hospital he has a trust that
his or her privacy will be respected and his dignity maintained.
If it can be found that the taking of the photograph was in fact
detrimental to the health of the patient an action could be taken for
assault (Swan C 1991, Hawkins C 1985) or if there was an implied
contract regarding confidentiality an action could be taken for breach
of contract as with Princess Diana and the photographs taken of her in
a leotard. In neither instance could an action be brought for breach of
privacy. The possibility that an action could be taken has changed with
the introduction into UK Law of the Human Rights Act in 1998 and
subsequent legal decisions in the UK and Europe.
At present photographs used in advertisements have to conform with
the guidelines laid down by the Advertising Standards Authority and
they have the right to ask for an offending article to be changed or
removed. There is no legal avenue through them for financial redress or
compensation.
Privacy in the United States of America
In America the right to privacy is an independent legal right
(Tarcinale MA 1980). Liability falls on someone who “unreasonably and
seriously interferes with another’s interest in not having his affairs
known to others or his likeness exhibited to the public”.
The law provides a legal basis for consent in that a right of
privacy may be waived through words or gestures or through implication.
Stevens GE 1978 describes a number of cases where medical photography
can and has abused a patient’s right to privacy. The acquisition and
use of pictorial information has to be balanced with the patient‘s
right to privacy, “rights which are zealously guarded by the courts”.
The cases cited include:
Intrusion into solitude
- Photography of a cancer victim on his deathbed against patient’s wishes.
Evidence of publicity
- Photograph published in a national magazine.
- Photographs of an accident victim being shown during a safety lecture in a secondary school.
- Before and after photographs of saddle nose published without consent in medical journal.
The importance of written consent is stressed by judgements through
the courts. The right to privacy can be overridden by the claim of
newsworthiness “legitimate public interest”. Patients ailment may be of
public interest but identity was not, court emphasised “any right to
privacy ought to protect a person from publication of a picture taken
without consent while ill or in bed for treatment or recuperation”.
COPPA - The Children's Online Privacy Protection RuleIn the
[http://www.coppa.org/ United States] and elsewhere privacy and
protection of Children has been a key issue in the use of the Internet
in that information collceted about children should not in anyway be
disclosed nore should children be indentifiable. See Electronic Privacy Information Center website.
Continuing Professional DevelopmentPatient Privacy. Journal of Audiovisual Media in Medicine 2004; 27 (1): 37-38 http://taylorandfrancis.metapress.com/openurl.asp?genre=article&id=doi:10.1080/01405110310001659634
Guided Reflection - [[Breach of privacy]]
WeblinksFor recent articles on the effect of privacy on photography, and the related topic of image rights, look at the British Journal of Photography
ReferencesAtwater E. (1996) Reulatory issues: Illegal videotaping can violate patient rights. Dermatological Nursing 8(2): 139.
Berkeley A. (1989) The right to copy. The Photographer; 25(7): 35, 25(8): 14-5.
Cassell D. (1989) The photographer and the law. London: BFP Books, 2nd ed.
Guralnik DB, ed. (1978) Collins Concise English Dictionary. London: Collins.
Hawkins C. (1985) Mishap or malpractice. Oxford: Blackwell Scientific Publications, Chapters 7 & 8.
Holman EJ. (1950) Legal aspects of patient photography. J Biol Photogr Assoc; 18 (4): 188-93.
Rubinstein J. (1990) The moral right. Br J Photogr 1990; April 12th: 29-31.
Swan C. (1991) Space invaders: point of law. Prof Photographer; 31(12): 39.
Stevens GE. (1978) Medical photography, the right to privacy and privelege. Med Trial Tech Q; 24: 456-64.
Tarcinale MA. (1980) Medical photographer’s role in protecting a patient’s right to privacy. J Biol Photogr; 48(4): 183-5.
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