Photographing people in "Compromising" situations without model releases

I got an interesting set of questions in email from someone that was wondering whether it's illegal to post a photo of someone in a "compromising" manner on a website. This may include a candid photo of someone, or a picture taken with the intent of "revenge" (like an ex-girlfriend). To address this, I'll address the sequence of questions as they came up:

On Mar 12, 4:49pm, minekaze@[...].com wrote:

My question has to do with freedom of expression on the Internet regarding "compromising" photos of people without model releases

All of these issues revolve around the law based on the "right of privacy" by individuals. The section of the law that applies here states:

Section 652D
One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that

(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.

As a review note, a "model release" is required if the use of a photo would otherwise make the photographer liable for violating the above statute (or a similar clause regarding use of a photo for use in commerce, which isn't discussed in this article).

In the text above, "giving publicity" can include taking a picture of someone and posting it on a website. For the subject of the photo to legitimately object to the image, it has to meet both (a) and (b). As you can imagine, the first part is a very high bar indeed. When the law says, "highly offensive," one can imagine just how offensive that would be for a judge (or jury) to agree that it's awful, especially when you live in the kind of society we do today. When the general public has been continually desensitized to what might have been 'offensive' a decade ago due to what is broadcast today on daytime television, or even the news, "highly offensive" probably won't include anything you shoot in public spaces. (Of course, if it's in a private place, then other provisions of the privacy law apply, which is beyond the scope of this article.)

If the person really is doing something highly offensive in a public space, and you have a photo of it, the next problem facing the subject for claiming a violation of privacy is part (b). That is, it's probably of legitimate concern to the public, as it may be something that people should be aware of, if for no other reason than to prosecute the person for doing something illegal. In other words, anything that would be considered "highly offensive" in public is likely to be something illegal.

Of course, my statement is somewhat of a leap. In fact, all of this is purely hypothetical, since we don't have a specific example to cite. My discussion here is more intended to speak the general photographer who may be concerned about shooting a candid photo of someone in public that's doing something silly, funny, or even stupid, and posting it on his website. A common example would be a picture of someone picking his nose, yawning in a funny way, sleeping on a bench, or even urinating on the street. Yes, even that isn't considered "highly offensive." And, since the person is doing it in public, there's also the assumption of "fair use," where the person is implicitly waiving his right to privacy.

Another application of this sort of thing is that of "public figures." Here, there is a perception that their rights to privacy are different from ordinary citizens. That isn't the case at all. However, the perception that the law is applied differently to politicians, movie stars and other celebrities is born more out of the observation that the paparazzi don't go after private citizens--only celebrities. The simple reason for this is not because regular citizens have more protection, it's because there's no money in photographing them. Paparazzi make their money by selling pictures of high-profile people to magazines and newspapers that pay a lot for those pictures because, sadly, the public will buy papers that have such photos.

Oddly, because of the celebrity status of such people, the question then becomes whether it's a matter of "legitimate concern to the public." Sure, one can certainly argue that a compromising photo of a movie star isn't really something that public should be "concerned" about, but this was the very defense used when crash photos of Princess Diana were published. Offensive, yes, but of concern to the public? Many people argued it was.

Regardless of what your values are and how you weigh in on this, there is a more important issue at hand: the entire premise of a free press relies on its ability to report on the actions of citizens, whether public servants, celebrities or private individuals. Strictly speaking, this foundation must be preserved for the system to work; if it were applied differently to public figures and private individuals, we would have a bigger set of problems to deal with. Yet, as we all know, it's a double-edged sword, and many people share a sentiment that what once constituted "the press" and "newsworthiness" has gone awry. It is to be noted, however, that this feeling has always been part of our society. Even during the founding of the country, when Ben Franklin's personal affairs were written about scathingly in Washington "tabloids" (of the time), even he defended the need to keep such acts legal. Once you introduce "exceptions" to the rule, the system breaks down.

When paparazzi publish photos of celebrities, the subjects of those photos can (and usually do) file a lawsuit because their careers are often at stake. When they win the suits, they often do so not because of the photo, but what is said about them in the accompanying article. Here, it is usually something slanderously untrue, and if it can be demonstrated that the untruths caused "harm"--usually of a financial nature--then they often win. One can also sue if paparazzi (or anyone else) violates other laws, such as illegal entry, or using a telephoto lens to photograph people in their private residences. This is the other "invasion of privacy" matter noted before.

Other related notes:

If a guy posts nude pictures of his ex-girlfriend on the Internet because he's mad at her for cheating on him or whatever, would she have much basis to win a legal case against him?

If he photographed her in a private setting, such that she felt she was not giving up her privacy from public view at the time, she can sue the pants off of him. If the photos were taken in Central Park during a political protest, where she was flashing her breasts, she doesn't have a chance of winning. Of course, all this assumes the photos were published in a non-commercial context, like on a postcard, in a poster, or on video. This brings up a related question:

What about girls filmed on "Girls Gone Wild..."

This gets into commerce, and in those cases, every one of those girls signed a model release. Yes, it's true. Such people do exist.

or the everyday people whose images you see posted on amateur satire or porn sites

"Satire" is a protected form of speech, but porn is an entirely different category all together. There are various decency laws and other things that make it complicated, and beyond the scope of this discussion. And yes, uses of images that are classified as porn do require a model release (and, in fact, a more stringent one). Are there violators out there? You bet. Could the subjects sue? Absolutely. Do they sue? Rarely.

In closing, these questions are good, but they are less about photography than they are about the First Amendment. And I realize that's a tall order: people go to college for years and years, spend their entire careers being lawyers, and even become judges, yet still disagree with one another on what constitutes a "legal" use of an image, and what doesn't. Even our current supreme court has nine people who are vehemently divided on these (and many other) First Amendment topics.

My advice to the common photographer: don't worry. Shoot away. If you're a pro, then you need to worry only if you are going to sell (license) the photo for publication. And then, you only need to worry if the use of the photo is "editorial" vs. "commercial." Commercial uses often require a release, and privacy issues usually aren't at issue. But, again, this is beyond the scope of this discussion.