Airbrushing history? Photos of Oxford Student Celebrations Raise Questions About Privacy Rights and Journalism

Airbrushing history? Photos of Oxford Student Celebrations Raise Questions About Privacy Rights and Journalism

A former Oxford University student asked image agency Alamy to remove photographs of her celebrating the end of exams. Now, the photographer accuses Alamy of “censoring the news”.  Is this a threat to freedom of the press, or has the woman’s human right of privacy been correctly protected?

The end of exams are a liberating and happy time for university students around the world. At Oxford, students take their celebrations to another level by partying en masse in the streets, covering each other in champagne, shaving foam, confetti, flour and silly string in a tradition known as “Trashing.”

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An Alamy photo of Oxford celebrations from 1968. “Trashing” has become a bit more crazy since the 1990’s.

Speaking to the Press Gazette, Photographer Greg Blatchford explained that during the 2014 Trashing, a student invited him to take photographs of her celebrating on the public streets. Some of the images show her swigging from a bottle of champagne, while in others she is covered in silly string.

Blatchford then sent “about 20” images to Alamy as news content. The former student subsequently stated that she “loved” the images in email correspondence to Blatchford, and even shared them on Facebook. This summer, four years later, the woman contacted Alamy to have the photos deleted. The company removed the images – much to Blatchford’s dismay.

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An Alamy stock image of Oxford University Trashing celebrations. Note: THIS IS NOT ONE OF THE SUBJECT PHOTOGRAPHS.

The right to be forgotten under the GDPR

Because the woman was able to be identified from the photographs, they constitute “personal data” as defined by Article 4 of the General Data Protection Regulation (GDPR). Under Article 17 GDPR, data subjects have the right in certain circumstances to compel the erasure of personal data concerning him or her.

For example, if the data was originally collected or used because the individual gave their consent, and that consent is subsequently withdrawn, the company may honour the request for deletion (Article 17(1)(b)). However, a company can also use a “counter attack” if an exception applies. Importantly for news and media agencies, if keeping the data is necessary for exercising the right of freedom of expression and information, they may be able to refuse the request and keep the data (Article 17(3)(a)).

For more details on how the right to be forgotten works in practice, see my earlier post, Now You’re Just Somebody That I Used to Know.

Are journalists under threat from privacy lawyers?

Blatchford explained that although they are now considered “stock images,” they were originally “news” photos and should not have been removed. By deleting the photos, Alamy “are censoring the news. I’m incensed that someone can influence news journalism and censor the past where clearly if photographs are taken in public, with the full consent of participants they can turn around and say ‘sorry, that’s not news’ later. This sets a precedent for anybody to walk up to a news organisation and say I don’t like the pictures of me. Journalists will then start feeling the threat of lawyers.”

In a statement to the Press Gazette, Alamy’s director of community Alan Capel said the images were submitted as news four years ago, but moved 48 hours later to the stock collection. “Therefore we are surprised that this is deemed to be ‘censoring the news.’ As per our contract with our contributors, we can remove any images from our collection if we see a valid reason to do so.”

The university said that participating in trashing can lead to fines and disciplinary action since it is against the university’s code of conduct
The comical images of students wearing sub fusc (formal academic attire) while partying are often published in newspapers around the country in May.

Privacy and press freedom have long been considered competing interests, but that’s not to say that striking an appropriate balance between the two is impossible.

On some level, I do sympathise with the photographer. I also struggle to buy Alamy’s argument that the images are not “news content” and are now “stock images.” The classification of an image should be based on its context, purpose and subject matter – not the time that has elapsed since the event, nor the label attributed to it on a website.

Stock images are, by definition, professional photographs of common places, landmarks, nature, events or people. By contrast, the Oxford Trashing photos are attributed to a specific time (May), place (Oxford), category of people (students), and event (celebrating the end of exams). They are popular for several reasons. Firstly, they illustrate a charming and comical juxtaposition. Although these students attend one of the oldest and most prestigious Universities in the world, they are – after all – entitled to a bit of fun. Secondly, Trashing has received increased press attention in recent years, as students have become subject to complaints fines, disciplinary action, and even police enforcement. These images clearly show, in ways that words alone cannot, matters of public interest.

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In this particular instance however, I think Alamy have made the right decision in deleting the images.

Although the Press Gazette does not name the woman, it does note she is “a marketing director in New York.” It’s entirely plausible that she has valid concerns that the images of her participating in Trashing may negatively impact her reputation and career, or otherwise cause some sort of harm or embarrassment.

She claims that “there was no consent given to publish or sell my photos anywhere. I am not a model nor have given permission to any photographers to take photos of me to publicly display or to sell. This was a complete breach of privacy.” This contradicts what the email records show, but even if she had lawfully consented to the photographs being taken at the time, she is entirely within her rights to now withdraw consent. 

On balance, Alamy probably has dozens – if not hundreds – of images from the 2014 Trashing at Oxford. The likelihood that the images of this woman in particular are somehow especially newsworthy is minimal. Had Alamy refused to delete the photos, the woman would have been entitled to raise a complaint with the Information Commissioner’s Office. ICO enforcement action can include injunctions, sanctions, or monetary fines. Furthermore, Alamy would risk becoming known as an organisation that doesn’t care about privacy laws, thereby damaging its reputation.

Contrary to Blatchford’s concerns, it is doubtful that an organisation would delete a genuinely newsworthy image, simply because someone doesn’t like how they look. The right to be forgotten is not an absolute right to be purged from history, but a right to regain control of how information about you appears online.

For more details on how the right to be forgotten works in practice, see my earlier post, Now You’re Just Somebody That I Used to Know. If you’re interested in how celebrities control images of themselves, see Fame and Fortune: How do Celebrities Protect Their Image?

Header image by Alex Krook via Flickr

For creatives in California, a recent employment law case may raise concerns over copyright ownership

For creatives in California, a recent employment law case may raise concerns over copyright ownership

This story was first published for the 1709 Blog, where I regularly write about copyright law in entertainment, technology and media. 

A California court ruling from April has raised concerns regarding its potential impact on copyright ownership. In Dynamex Operations West, Inc. v. Superior Court of Los Angelesthe matter before the court was a wage dispute, which required the court to consider the standard to apply in determining whether workers should be classified as employees, or as independent contractors.

Nowhere in the 85-page judgement is “copyright” or even “intellectual property” mentioned. However, in a state with so many media and software companies, the new ruling could affect whether a creator or a company gets to claim ownership as the original author of a work. In deciding if a worker is eligible for statutory employment protections, Dynamex replaced a complex multi-factor consideration with a simple three-part “ABC” test. Now, Californian companies are burdened with the requirement to prove that all three parts weigh against an employment relationship.

What does this mean for copyright law? The rise of the gig economy, which is characterised by short-term contracts and freelance work, poses new questions for intellectual property ownership. To determine if someone is an employee for purposes of copyright authorship, American Federal courts currently use a test in the US Treasury Department’s Internal Revenue Service code.

If, however, the courts start looking to the Dynamex case for guidance, people’s expectations might change. Speaking to Bloomberg Law, music industry lawyer Michael S. Poster explained: “If, under California law, a lot more people are going to be treated as employees rather than as independent contractors, chances are that a lot of their work product that they would have retained a copyright interest in might belong to their employer.”

Although the Copyright Act of 1976 provides authors with initial copyright interests, under the work-made-for-hire doctrine, it is the employer that is considered to be the author. (Section 201(b)). On the other hand, if the author is an independent contractor or freelancer – rather than an employee – ownership is retained by the individual creator, unless there is a contractual agreement to the contrary.

For participants in the gig economy, the Dynamex ruling could simply prompt media and software companies to hire fewer independent contractors, and instead only hire people as employees. Although the copyright implications of Dynamex are unknown, the decision underscores the need for employers and workers alike to ensure that any contract for services includes a carefully drafted intellectual property rights clause – especially for those in creative industries.

Legal Careers: Applying for Training Contracts & Vacation Schemes

Legal Careers: Applying for Training Contracts & Vacation Schemes

It was a little over four years ago that I secured my training contract. Now that I’ve successfully been through the process myself, here are a few tips on applying for training contracts and vacation schemes that I hope you might find helpful.

It goes without saying that one of the most important skills any solicitor can have is the ability to organise and prioritise. One of the most helpful systems I implemented during my year-long search for a training contract was an extensive spread sheet.

To begin, I listed out the main information of 100 or so firms with offices in London. This was a dispassionate research task: I tried to separate any emotion I felt regarding rankings or website design.

My research considered:

  • what the application process entailed (verbal reasoning test? cover letter? assessment centre? presentation? panel interview?)
  • their big clients and main practice areas
  • the deadline for their application
  • the number of vacancies

I also looked at their salaries, which in retrospect only served as a distraction. If I had to do it all over again, I’d ignore the financial aspect and simply concentrate on recent deals and commercial awareness in relation to the firm’s core industries.

Conducting this preliminary research forced me to spend about 10-15 minutes acquainting myself with just how many firms are out there. I strongly encourage this approach at the outset, because I promise that there are fantastic firms beyond the magic circle, silver circle, and big-name US firms.

Narrowing down the application list was really difficult for me, and my ideas as to which firms to apply to changed often. Some suggestions I have for going from a seemingly endless list of firms to those you’ll actually be applying to are:

  • Group similar applications together. If you have a “mega-list” and a “maybe” list, take a look at your “maybe list” and compare the application forms. If a firm is only asking for a cover letter and a handful of standard questions (“why solicitor?” “why commercial law?” “what are the biggest challenges facing the legal sector today?”) it likely won’t take quite as long to complete when compared to a very bespoke application.
  • It might be better to complete several applications to firms that you’re not super-crazy about, versus spending your time hunting for THE ONE PERFECT FIRM FOR YOU. Spoiler alert: There probably isn’t one perfect firm for you. And even if there is, you might not be offered a place there. My heart breaks every time someone tells me, mid-July, that they’ve “only applied to one or two firms,” because they “just wouldn’t want to work anywhere else.”
  • Look beyond the numbers! I thought I’d have a better chance getting in with a firm that had 100+ vacancies, as opposed to a smaller firm. But the firm that finally offered me a contract actually only took 5 trainees per intake! Likewise, I wouldn’t worry too much about firm statistics such as PPP/profits per partner. Of course you want to be part of a business that’s doing well, but a lot can (and will!) change over the course of the next few years in the legal sector. A firm that’s doing marvelously today may struggle in a year’s time, and vice versa. Furthermore, indicators such as PPP don’t really tell the whole story. When you’re at the onset of your career, I’d suggest focusing on the things that will matter most to you, personally – things like time spent being mentored by senior associates or partners, your exposure to clients, opportunities for secondments or overseas seats, and the work/life balance you can expect to have.
  • Take things with a pinch of salt. It’s practically impossible to outsmart “the system,” because there really is no coherent system! Sometimes it just boils down to timing, luck, or some aspect of personality you cannot predict. I worked at a particular firm for 8 months, and did very well on the vacation scheme. I thought I stood a very strong chance to secure a training contract, but for whatever reason, I just didn’t have the right “vibe” for the two partners that led my final interview. Although it hurt to be rejected, I knew that I couldn’t take it (too) personally. What works brilliantly for some might not work for you.
  • If a firm looks good to you, APPLY. If a firm doesn’t look good to you (despite being the firm “everyone else applies to,”) DON’T APPLY. Just move on to something else. Don’t waste time agonising over the decision – you can always go back and submit an application later (before the deadline, of course) if you change your mind.
  • This may be an unpopular opinion, but I believe that applying to at least 10 firms is the best approach. In total, between applying for training contracts and vacation schemes in 2013 and 2014, I sent out over 60 separate applications. If you’ve done well at university and have already secured a vacation scheme (or even an interview for one) then the likelihood is that the quality of your applications is already there. It then becomes a numbers game. Once you’re confident in your answers (and have had someone else proof-read for grammar/spelling mistakes!) send the application off, and then send off another one. And another one. And another one. When I was applying for vacation schemes in December 2013, the very last application I made (the day before the deadline!) ended up landing me a week-long placement at a big international firm.

 

Good luck!