Imagine the situation: you're the editor of a newspaper or news website covering the conviction of a mother for the murder of her child through neglect. The story is grim and gruesome, but you think that including some compare-and-contrast photos, showing the child in years gone by, happy and healthy, as well as in the hideous conditions in which he was left to die miserably, is in the public interest. But, the only images of him happy and healthy are the copyright of the mother. And the child's grandmother is protesting that seeing these images will cause her distress. What to do?
Well, according to Lord Woolman, sitting at the High Court of Justiciary in Scotland, publishing the images is entirely legitimate. In this instance, freedom of expression, and with it the public interest, trumps both copyright and the right to privacy.
Lord Woolman was ruling on whether or not the BBC was justified in publishing six images of Declan Hainey, who was murdered by his mother Kimberley, that had been referred to by witnesses in court and showed Declan in happier times. Now, Section 45 of the Copyright, Designs and Patents Act (CDPA) allows for the media to reproduce copyrighted works if reporting on parliamentary or judicial proceedings, but whilst the images of the child had been used as evidence in court, they weren't placed on the court's document imager and neither were they displayed to the public in court. So it wasn't necessarily that clear-cut. In Lord Woolman's opinion, however, because the images had been used as evidence, they had effectively been published in open court. Furthermore:
The BBC only intends to use the photographs for the purpose of reporting the trial. In my view, were it necessary to do so, the public interest in the proper and full reporting of this case is sufficient to 'trump' any right of the copyright owner.
Round 1, then, goes to the public interest. So what about privacy? Lord Woolman's opinion was that privacy also took a backseat to the public interest, but only in so far as images of the boy alone were concerned. When it came to images of Declan with his grandmother, they weren't deemed in the public interest and the BBC had no justification in reproducing them. That would have been a step too far.
I wonder what Leveson would have to say about all of this?