Back in November, I pondered the subject of consent in relation to an exhibition of photographs by Heather Shuker of girls in toilets taken without their knowledge (see here) – and particularly questions of privacy, image rights and reputation. Similar questions have now been raised in respect of the reproduction of old mug shots on prints, posters and notebooks by US company Larken Design.
A few years ago, one of the principles of Larken Design purchased some mug shots which had been discarded by the Alameda County Sheriff’s Department in California from an antiques shop. Copies of these mug shots were then digitally retouched and reproduced as prints and posters, and on notebooks and mugs, which are now available to purchase.
While no names are revealed on the images, the use of the mug shots nevertheless raises questions as to the legality and propriety of using the shots.
The New York Times reports that the assistant sheriff for Alameda County believes that since arrest records in California are public information, dissemination is not crime, and nor is copyright infringement an issue. (Although it is not clear what his authority is for this latter statement.) However, this does not address questions of privacy and reputational damage.
Although the names of the subjects are not revealed, unlike the Shuker exhibition, it is much easier to determine the identity of the individuals. Having paid for their crimes (whatever those may have been), should these individuals not be entitled to a right to privacy and protection of their reputation, and therefore be able prevent the reproduction of their images by Larken Design? Not in the US according to Peter Swire, a law and judicial administration professor at the Moritz College of Law at Ohio State University. In his quote to the New York Times, Mr Swire says (of Larken Design): "In terms of public revelation of private fact, they can say they’re not telling the names of anybody, so they’re not harming any individual, and that under the First Amendment they’re allowed to publish truthful old photos.”
I would say that the position under UK law is not as clear cut. The UK Human Rights 1998, which came into force on 2 October 2000, incorporates the European Convention on Human Rights (ECHR) into domestic UK law. Article 8 of the ECHR contains an express right to privacy that "Everyone has the right to respect for his private and family life, his home and his correspondence." Accordingly, in the UK these rights would have to be taken into account. Therefore, if it could be shown that the use of such images constituted an unjustified disclosure of private information - in respect of which the claimant could be said to have a reasonable expectation of privacy - a privacy action might succeed.
Source: The New York Times, 27 August 2011