BBC's images of murdered infant did not breach privacy, copyright

Copyright and privacy law do not prevent the BBC from publishing images of a murdered child, a Scottish criminal appeals court has ruled.

The High Court of Justiciary ruled that the BBC could have access to six photographs of Declan Hainey in a "healthy and apparently happy" state in order to include the images in a report on the conviction of his mother as the boy's murderer.

Earlier this month the High Court in Glasgow sentenced Kimberley Hainey to 15 years in prison for the murder of her son.

Copies of photographs of Declan had been issued to the jury during the trial and had also been referred to by witnesses, the ruling said. Kimberley Hainey owned the copyright to the pictures, which had been supplied to the police by Declan's grandmother for use at the trial. They were not displayed to the public in court or "placed on the document imager," the ruling said.

Lord Woolman first established that the BBC was entitled to use the images under UK copyright laws. He said because the photographs had been used as evidence at the trial and "were effectively published in open court" that they could be disclosed.

Under Section 45 of the Copyright, Designs and Patents Act (CDPA) the media can legitimately publish copyrighted works if reporting "parliamentary or judicial proceedings", although this right does not extend to "copying of a work which is itself a published report of the proceedings".

The Act also provides a defence to copyright infringement if it can be proven that the infringement was justified in the public interest.

"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," Lord Woolman said in his ruling.

Elizabeth Rodden, Declan's grandmother, had rejected requests "on a number of occasions" for the images to be released, claiming that it would "cause her distress for the photographs to be widely circulated".

However, in weighing up Rodden's privacy rights and the rights of freedom of expression by the BBC, which are both guaranteed rights under the European Convention on Human Rights, Lord Woolman said the BBC had the right to publish six of the images of Declan on his own. He ruled that Rodden's right to privacy outweighed the BBC's right to publish a seventh photo that featured both Rodden and her grandson.

"In my view, the BBC should not be granted access to [the image] ... of Declan with Mrs Rodden. No good justification for publishing that photograph was provided. The BBC argue that publication of a photograph of the child with his grandmother would heighten legitimate public interest in case. In my opinion, however, that is a weak justification. Applying the proportionality test, the [right to freedom of expression] does not override Mrs Rodden's [right to privacy]," Lord Woolen ruled.

"The other photographs of Declan alone are in my opinion in a different category. No questions of indecency or of shock to members of the public arise. They show a normal infant. I see no reason why they cannot be broadcast or published to illustrate the tragedy associated with his death. In my view, the right to freedom of expression or more particularly the principle of open justice indicates that the BBC is entitled to access to these photographs," the judge said.

Copyright law expert Cerys Wyn Davies of Pinsent Masons, the law firm behind Out-Law.com, said the case raised questions about whether it was right that 'fair dealing' exceptions to copyright law do not extend to photographs.

“Although this case dealt with the issue of copyright infringement under Section 45 of the CDPA, it highlighted a potential issue about whether the media should also be allowed to publish copyrighted images under the ‘fair dealing’ copyright exemption rules,” Wyn Davies said.

“UK copyright law allows copyrighted works to be used without infringing the rights of copyright owners as parts of news reports and in other limited circumstances. This ‘fair dealing’ for news reporting explicitly does not apply to photographs, but the UK’s Intellectual Property Office has said that the intention behind this is ‘to prevent newspapers or magazines reproducing photographs for reporting current events which have appeared in competitor’s publications’," she said. "The photographs at issue in this case were clearly not being reproduced by the BBC from rival publications. Given the plans to reform copyright law and exceptions announced by the Government and currently under review, perhaps the ‘fair dealing’ provisions could also be revised and redrafted to include circumstances where some images can be exempt from copyright infringement".

“This case also shows the potential conflict that can occur between the right to copyright protection and the right of freedom of expression," said Wyn Davies. "The judge in this case made clear that there may be circumstances, although exceptional, where the right of freedom of expression is paramount in the public interest and a court should deny the copyright owner any relief which would prevent freedom of expression. This is evident from this case even though the outcome of it did not ride on whether publication was justified in the public interest or not".

“The ruling does however show that whilst the right of freedom of expression may 'trump' copyright, in the same circumstances the right to privacy may 'trump' the right of freedom of expression. In this case one photograph of the victim with a relative was held not to be for publication as the individual’s right to privacy was more important,” Wyn Davies said.

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