Privacy in focus: urban life watching is art in New York State

Don't look -- unless you
are a neighbour, that is ...

There is no doubt that privacy concerns related to the use of personal data, including one's own images and portraits, have become of pre-eminent interest especially in the view of technological developments that permit not only a precise identification and tracking of individuals but also the viral dissemination of the data gathered through the internet. The basics of data/privacy protection can be summarised in the right of natural persons to a lawful processing of their bundle of personal information which must be collected for legitimate purposes and with the consent of the interested party, provided that such a right can be limited by derogations made on the basis of countervailing interests of equal rank.

Data protection is a matter of national law, which may lead to discrepancies and/or conflict among jurisdictions. While the European Union waits for the reform of data protection legislation, in New York State the Appellate Division of the Supreme Court explained in its judgment in Foster v Svenson how much legislation may need to catch up with the speedy evolution of technology in order to prevent undesired invasions of personal lives within our globalised society.

Are long lenses only useful
for bird-watching sessions?

Arne Svenson, a critically acclaimed fine art and cat photographer [and not to be confused with Nils Svensson, here], clandestinely shot his neighbours' environmental portraits by means of a bird-watching telephoto lens “inherited” from a friend, from the window of his apartment and through the glass façade of the building in which they lived. The photographic project, called “The Neighbors”, sought to represent the photographer's analysis on the “anonymity” of urban life. It was exhibited in galleries in Los Angeles and New York City. In some of the photographs displayed in artist's website, the subjects' faces were partially recognisable.

Was Snowy's consent
sought -- or given? Does
it even matter ...?

Among the photographs were some that showed the plaintiffs' children, aged three and one, without sufficiently obscuring their faces. Once the plaintiffs learnt of those photographs through the promotion of the exhibition in the media they sought their removal from the exhibition, the gallery's and the defendant's websites [an online check indicates that this attempt appears to have been successful, at the time of drafting this post, but following the judgment at issue].  Svenson did not comply with this demand with regard to a picture of the three-year-old girl in her swimsuit. That photograph was used in the project's advertisement on a New York City television broadcast and on other media, including NBC's “Today Show”. Finally, the depicted building's address was revealed in print and online.

The plaintiffs sued for injunctive relief and damages for the statutory tort of invasion of privacy and the common law tort of intentional infliction of emotional distress. However, the Supreme Court dismissed their complaints and sided with the defendant, who had pleaded the First Amendment defence against the plaintiffs' privacy claims. The Court affirmed that the photographs' publication, sale and use could not be impeded. On appeal, the decision was confirmed.

First, the Appellate Division held that Svenson's conduct did not fall under the scope of protection of the statutory tort of invasion of privacy, according to Articles 50 and 51 of the New York Civil Rights Law. In particular section 50 reads as follows:

A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanour.

Article 51 adds a proviso that 

“nothing contained in this Article shall be so construed as to prevent any person, firm or corporation, practicing the profession of photography, from exhibiting in or about his or its establishment specimens of the work of such establishment, unless the same is continued by such person, firm or corporation after written notice objecting thereto has been given by the person portrayed”.

Allowed in NY

The Court of Appeals applied the settled case law on the newsworthy and public concern exemption, as construed in Howell v New York Post Co, granting art works the same leeway as is accorded to the press in the name of the public interest in the dissemination of images and aesthetic values. As affirmed in the relevant case-law, this exemption covers various types of artistic expression, photographs included, in so far as their publication is not to be considered for mere advertising and trade purposes, as required by the statutory tort of invasion of privacy.

That was the case for Svenson's photographs, stated the Court, since the plaintiffs failed to prove those purposes and did not contest the photographs' status as art works. No argument was submitted as to the artistic idea of urban anonymity elaborated in the photographic project. Could Svenson not have undertaken his urban investigation after previously advising his neighbours accordingly and obtaining their previous consent without photographically trespassing into their home?

Secondly, in regard to the allegation of the improper manner in which the pictures were taken, not even the plea based on the tort of intentional infliction of emotional distress prospered. The Court did not find Svenson's conduct sufficiently “atrocious, indecent and utterly despicable” as to overcome the First Amendment protection, considering the high threshold for retaining outrageous behaviour [as construed in Howell v New York Post Co], even although minors were involved in the present case.

Quoting the judgment's last paragraph, there is nothing else to add, other than 

“Undoubtedly, like plaintiffs, many people would be rightfully offended by the intrusive manner in which the photographs were taken in this case. However, such complaints are best addressed to the Legislature —- the body empowered to remedy such inequities (see Black v Allstate Ins. Co., 274 AD2d 346 [1st Dept 2000]; Yankelevitz v Royal Globe Ins. Co., 88 AD2d 934 [2d Dept 1982], affd 59 NY2d 928 [1983]). Needless to say, as illustrated by the troubling facts here, in these times of heightened threats to privacy posed by new and ever more invasive technologies, we call upon the Legislature to revisit this important issue, as we are constrained to apply the law as it exists”.