The visual backdrop

The exhibition featured 250 works by celebrated artists including Henri Cartier-Bresson’s erotic images of prostitutes in a Mexican barrio; Kohei Yoshiyuki’s 1970s nocturnal images of lovers entwined in Tokyo’s parks watched furtively by salivating spectators, and Ron Galella’s relentlessly aggressive photographic pursuit of Jacqueline Kennedy Onassis. The shadow of death loomed large; the exhibition included iconic pictures from Vietnam: Malcolm Brown’s image of the monk immolating himself before US TV cameras and Eddie Adams’ shot of the quick and casual execution on the street of a suspected Viet Cong.

Against this striking visual backdrop a symposium was staged within the surveillance hall of the exhibition’s 13 rooms. Chaired by Charles Haddon-Cave QC, it featured Lord Hoffmann, retired Law Lord; Alison Jackson, contemporary artist and film-maker; Max Mosley, former President of FIA and Henry Porter, Observer journalist, Co-Director of The Modern Convention on Liberty and London’s Editor of Vanity Fair. In a ground-breaking collaboration between Tate Modern and  Gray’s Inn, the worlds of art and law came together to focus on our society’s growing obsession with watching and being watched.

Protecting privacy

Lord Hoffmann brought to the evening his customary intellectual gravitas posing two questions: “Should the law protect privacy?” and “Can the law protect privacy?”. The first question he answered with an unequivocal “yes.” The growth in technology allows for every detail of our private life to be captured; however, he argued, the privacy of our lives still needs to be protected. He considered the influence on English law of the European Convention on Human Rights and reviewed continental legal systems which provide for privacy protection.

The second question, “Can the law protect privacy?” did not yield a similarly satisfactory answer. This was for two reasons. First, the huge cost in bringing privacy proceedings tends to inhibit anyone other than the very rich or those on a conditional fee arrangement from bringing these actions. Second, once the private information that requires protection has been made public, legal action becomes an ineffective response. 

Remedies for invasion of privacy

Lord Hoffmann’s doubts about an effective remedy in the context of privacy cases was powerfully illustrated by Max Mosley, who, through his own case, demonstrated the redundant nature of a post-publication remedy. Although he was awarded £60,000 for the invasion of his privacy by the News of the World, the damage caused to him by that invasion was permanent, constant and worldwide. His recovered costs of £420,000 set against his actual costs of £510,000 still left him £30,000 out of pocket and he was subjected to the detailed exposure of the very information that the court ruled was private. In January 2011 the European Court of Human Rights will consider Mr Mosley’s application that the UK government should make “prior notification” compulsory, which would allow for the subject of a news story to be informed in advance of publication providing the opportunity of an application for an injunction.

An artist’s perspective

An artist’s perspective was delivered by Alison Jackson who provided a thrilling cultural counter-blast to the narcissism of the celebrity and the voyeurism of the public. In her work, Jackson uses celebrity lookalikes posing as real stars in surprising and sometimes shocking situations, revealing what might or might not be going on behind the closed doors of the famous. Her photos demonstrate that whilst seeing is believing, reality is another story and the camera can indeed lie.

State surveillance

The last speaker, Henry Porter, focused on surveillance by authority and government. He said that outside North Korea, the British were the most watched public in the world and stressed the need to define and to set the limits of State surveillance. He spoke with conviction about the alarming case in June of this year involving the installation by West Midlands’ police of over 200 cameras in two predominantly Muslim areas of Birmingham with virtually no consultation or oversight – a further  example of State surveillance, now fortunately decommissioned.

A lively question and answer session produced a moving contribution from Lord Prescott who lambasted the press for hounding families unwittingly caught in the cross-fire of an expose, inflicting collateral damage in pursuit of their story – a high note on which to end the evening.

Unquestionably, the rise of the internet has had a dramatic effect on our privacy. Have the likes of FaceBook, Twitter, reality TV and Google Earth turned us into a society of voyeurs and exhibitionists, lowering our guard against excessive surveillance of our lives at the expense of our privacy? Has our predilection for watching Big Brother encouraged Big Brother to be watching us?

Siobhan Grey, Charter Chambers, organised the symposium. She also introduced the event 

An edited version of this article was published in The Lawyer (8 November 2010)