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the data was originally collected or used because the individual gave their consent, and that consent is subsequently withdrawn, the company may honour the request for deletion (Article 17(1)(b)).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

Is posting rap lyrics on Instagram a #HateCrime?

Is posting rap lyrics on Instagram a #HateCrime?

A teenager who posted rap lyrics on Instagram has been convicted of “sending a grossly offensive message over a communications network,” which was uplifted to a hate crime. She has received a community order (probation) and must pay costs of £500 ($700 USD) together with a £85 victim surcharge.

Chelsea Russell, a 19 year-old woman from Liverpool, England posted the lyrics from American rapper Snap Dogg’s song, “I’m Trippin” (NSFW) onto her Instagram account profile, or “bio.” The lyrics in question were ‘kill a snitch n—-a and rob a rich n—-a.’

Russell claimed she posted the lyrics as a “tribute” following the death of a 13-year-old in a road traffic accident. A screen shot of her profile was sent anonymously to Merseyside Police’s Hate Crime Unit, and Russell was brought in for questioning. She attempted to claim that her Instagram was not public as only Instagram members could access it, but the Crown proved in court that anyone could see Russell’s bio.

Russell’s defence lawyer, Carole Clark, claimed that the meaning of the ‘n’ word has changed over time, and has been popularised by hugely successful and mainstream artists including Jay-Z, Eminem and Kanye West. In particular, “Jay-Z used these words in front of thousands of people at the Glastonbury festival.” Clark also pointed out that the spelling of the word ended in an “-a,” rather than the arguably more pejorative “-er.” Nevertheless, District Judge Jack McGarva found Russell guilty and added, “there is no place in civil society for language like that.”

Under section 127 of the Communications Act 2003, it is an offence to send a message that is grossly offensive by means of a public electronic communications network. Section 145 of the Criminal Justice Act 2003 provides for an increased sentence for aggravation related to race.

Under the Crown Prosecution Service’s guidelines on prosecuting cases involving communications sent via social media, before heading to trial, there must be sufficient evidence that the communication in question is more than:

  • Offensive, shocking or disturbing; or
  • Satire, parody, iconoclastic or rude; or
  • The expression of unpopular or unfashionable opinion, banter or humour, even if distasteful to some or painful to those subjected to it.
“Freedom of expression is applicable not only to ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State, or any sector of the population.”
—European Court of Human Rights decision in Handyside v United Kingdom (1976)
It may be tempting to see this verdict as an overreach by Crown Prosecution Services, or “political correctness” gone mad. However, the lyrics Russell chose to share don’t simply drop the N-bomb. These lyrics may be understood as encouraging killing and robbing of a particular type of person — ie, black men.

The distinction between “offensive” and “grossly offensive” is an important one and not easily made. Context and circumstances are highly relevant.  The legal test for “grossly offensive” was stated by the House of Lords in Director of Public Prosecutions v Collins [2006] UKHL 40 to be whether the message would cause gross offence to those to whom it relates – in that case ethnic minorities – who may, but need not be the recipients.

Accordingly, there is a high threshold at the evidential stage. The Crown must also consider an author’s rights of expression enshrined in the European Convention of Human Rights. Extreme racist speech is outside the protection of Article 10 because of its potential to undermine public order and the rights of the targeted minority (Kuhnen v Germany 56 RR 205).

Article 10 – Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Russell’s case brings to mind the similar legal battle of Paul Chambers. Frustrated that his travel plans had been disrupted by bad weather, in 2010 he tweeted about blowing up an airport and was subsequently arrested. His conviction attracted public outroar and became a cause célèbre for freedom of speech activists before being overturned on appeal (Chambers v Director of Public Prosecutions [2012] EWHC 2157).

However, there are considerable differences of fact between Russell’s Instagram bio and Chambers’s tweet. Chambers’s tweet mentioned the weather delay — the all important context — and his “threat” lacked menace, because it did not create fear or apprehension in those who read it. Russell may have been quoting a song lyric, but isolated from any other information, her words could reasonably be (mis)interpreted as a genuine threat.

Unfortunately, only limited information is available on Russell’s case, so it is not possible to fully analyse how the Crown determined that it was indeed in the public interest to pursue prosecution. I would assume however that there were some extenuating circumstances. Perhaps Russell had a history of offensive behaviour, or maybe the prosecution proved that the lyrics were intended to cause malicious upset to a grieving family?

While the legal principles and their application may be uncertain in situations such as these, this case underscores the need for a cautious approach to social media. At times, even though I recognise intellectually that my Twitter and Instagram feeds are “public,” the fact that I share personal insights and photos makes the platform seem perhaps more intimate and secure than it really is. Social media is like any other “community,” for which certain rules of decorum do apply.

Google prepares for the first “Right to Be Forgotten” trials in England

Google prepares for the first “Right to Be Forgotten” trials in England

All human beings have three lives: public, private, and secret.
― Gabriel García Márquez

The European Union’s Court of Justice decision in Google Spain v Agencia Española de Protección de Datos, Mario Costeja González (“Google Spain”) confirmed the “right to be forgotten” for European citizens. This right is further enshrined in the upcoming General Data Protection Regulations (GDPR). Accordingly, European data protection law grants individuals a qualified right to have personal data relating to them removed from search engines.

This right is however considered by some to be a uniquely European phenomena, which resulted from one unusual CJEU judgement. Now, two upcoming cases against Google will be the first time in which the “right to be forgotten” will be considered by the English Courts. 

Two unnamed claimants, known only as NT1 and NT2, are bringing a companion case against Google to enforce their right to be forgotten. (NT1 v Google and NT2 v Google,  [2018] EWHC 67 (QB) (Rev 3))

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Lord Hutchinson, barrister who defended “Lady Chatterley’s Lover,” dies aged 102

Lord Hutchinson, barrister who defended “Lady Chatterley’s Lover,” dies aged 102

In October 1960, a jury formed at the criminal court in central London was asked to consider what would become one of the most important cases in modern English history. The trial concerned neither murder, treason, nor espionage, but the publication of D. H. Lawrence’s Lady Chatterley’s Lover by Penguin Books. In honour of Lord Jeremy Hutchinson QC, a member of the Penguin defence team who passed away yesterday, here is a reminder of why Regina v. Penguin Books was such an enormous decision for the freedom of expression.

First published in 1928Lady Chatterley’s Lover tells the story of a young married woman, Lady Constance Chatterley. Her husband, Sir Clifford Chatterley, is handsome and wealthy, but paralysed from the waist down after injuring himself in the First World War. In addition to his physical (read: sexual) limitations, Clifford neglects Constance emotionally: her frustration leads to her affair with the estate’s gamekeeper, Oliver. A particular sex scene and liberal use of strong language including “fuck” and “cunt” led to it being banned in several countries.

Continue reading “Lord Hutchinson, barrister who defended “Lady Chatterley’s Lover,” dies aged 102″

Reputation: Taylor Swift’s protections under American and English defamation law

Reputation: Taylor Swift’s protections under American and English defamation law

this post is featured on the University of the Arts London’s intellectual property blog, creativeIP.org

♫♬ Now we’ve got problems / and I don’t think we can solve them (without lawyers…)

The right to freedom of expression is not an absolute right: there are certain restrictions in place to protect an individual’s reputation. But those restrictions vary significantly, depending on which side of the Atlantic you’re on. Considering the shared legal traditions of the United States and Great Britain, their differences on the issue of free speech is surprising. 

In early September, PopFront published an article entitled “Swiftly to the alt-right: Taylor subtly gets the lower case kkk in formation.” Exploring the singer’s (somewhat convoluted, if not contrived) connections to the American alt-right, PopFront suggests Swift’s song “Look What You Made Me Do” resonates with Breitbart readers, Trump supporters, and white supremacists, et al. The article also shows a screenshot from Swift’s music video juxtaposed with a photo of Hitler, noting that “Taylor lords over an army of models from a podium, akin to what Hitler had in Nazi Germany.”

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Gunpowder on Primetime: were torture and execution scenes too violent?

Gunpowder on Primetime: were torture and execution scenes too violent?

The BBC’s new show has been criticised for being “unnecessarily gruesome and brutal,” with some viewers saying they became physically ill due to the graphic torture and execution scenes. Is portraying such violence necessary to better understand the historical context of 17th century England, or simply too much for Saturday night primetime television?

Tonight is Bonfire Night! The “Gunpowder Treason Plot” of 1605 was a failed mass assassination attempt against King James I of England and VI of Scotland and the House of Lords. A group of English Catholics planned to blow up the Palace of Westminster, following which the Protestant King James would be replaced by a Catholic monarch. When Guy Fawkes was discovered guarding 36 barrels of gunpowder beneath the palace, the plot was foiled and the conspirators were subsequently executed.

Londoners celebrated King James’s survival by lighting bonfires around the city, as a “public day of thanksgiving.” Although it’s no longer an official holiday, there are still bonfires and fireworks around the country to remember remember the fifth of November.

Continue reading “Gunpowder on Primetime: were torture and execution scenes too violent?”

Questioning the General: parallels to Soviet media control?

Questioning the General: parallels to Soviet media control?

Earlier this month, Representative Frederica Wilson of Florida reported that President Trump made insensitive, off piste comments over the phone to the widow of a soldier recently killed in Niger. According to Wilson, Trump told Myeshia Johnson that her husband “knew what he signed up for, but I guess it still hurt.” Trump flatly denied such comments. President Trump’s Chief of Staff, retired Marine Corps General John Kelly, rushed to Trump’s defense. Kelly called Congresswoman Wilson an “empty barrel,” and noted he was “stunned” over alleged comments she made “grandstanding about her own actions in Congress” at a building dedication ceremony honouring slain FBI agents.

Continue reading “Questioning the General: parallels to Soviet media control?”