THE BBC received thousands of images and dozens of film clips direct from observers’ mobile phones within an hour of the London bombings on July 7, 2005. Harrowing images of a terrorist attack were instantly available through the eyes of victims and eye witnesses thanks to the widespread use of camera phones. The “citizen journalist” is changing the way that news organisations cover major events and find stories.

Web-based image brokers have sprung up to develop the financial potential of this phenomenon: they ensure that images of historic events and celebrities captured by the public are available only to the highest bidder. Some claim that this will revolutionise journalism; whether it does will depend on how successfully the citizen journalist can navigate a number of legal risks.

On November 1, 2005, Spy Media opened for business the “News Photo Marketplace for Everyone”. Spy Media offers an “automated news commerce website” brokering the sale of digital images uploaded by any member of the public. The photographer sets the sale price and selects the level of ownership offered to buyers. He can choose from four levels ranging from “Exclusive — Buyer is given all rights to the photo” to “Personal . . . not allowed to be used in publications”. Spy Media will take a 35 per cent cut of any image sold.

Spy Media is not the first retail image broker. Scoopt, based in Scotland and launched on August 30, 2005, claims to have 3,000 members. The Scoopt model is simpler. By uploading an image to the Scoopt website the photographer automatically grants Scoopt a three-month exclusive worldwide licence to market and sell the image to the highest bidder. The photographer does not set the price nor the level of ownership. Scoopt’s commission is 50 per cent of any sale proceeds.

Spy Media and Scoopt have no control over the images loaded into their databases. Unsurprisingly, they use small print to deal with big risks. The terms and conditions for using the image broker’s services require the photographer to promise that: “he owns the copyright in the image and it does not infringe the intellectual property of any other person”; “the image is not pornographic, obscene or illegal”; “the image does not infringe the privacy of others”.

Failing to keep these promises exposes the photographer to liability for breaching his contract with the broker. It also leaves him vulnerable to claims from people offended by, or identified in, the image.

Ownership of an image is a question of originality. For any copyright to exist in an image the photographer has to show that he has invested sufficient effort, skill and judgment to create it. This hurdle is relatively low. Simply choosing the camera angle or the moment the photo is taken can be enough to create an “original” image. A far harder obstacle is proving that you are the creator of a camera-phone image. Because there are no negatives and camera phones do not provide systems that can prove origin, there is little to stop others passing off an image as their own.

Spy Media boasts that it will not censor images uploaded to its site. Nevertheless, its terms and conditions put the onus on the photographer to ensure that the image is not indecent or obscene. Determining what is decent or offensive is notoriously difficult, a subjective decision that is frequently influenced by the high commercial value given to risky or topical images. If the camera-phone photographer gets it wrong, the offensive image is widely distributed, leaving him vulnerable to defamation claims.

English law favours confidentiality rules to protect privacy. These are flexible enough to find privacy in seemingly public circumstances. Naomi Campbell relied on confidentiality rules to stop publication of pictures showing her leaving a drug rehabilitation clinic. Although the pictures had been taken in a public place, the courts considered them to be private. This case also showed how data protection laws can be used as a sword as well as a shield. Taking a digital photograph of a living person involves “processing” personal data under the Data Protection Act. Although there are exceptions, processing generally requires consent to be lawful. Naomi Campbell had not given her consent and was able to claim damages successfully as a result.

Selling photos may be profitable; it will certainly be risky. Exposure to many of the risks will result from the initial act of uploading images for display on a broker’s website. The risks exist even if the image is never sold — an imbalance that undermines the image-brokers’ assumptions.

Rod Kirwan is a partner and Emma Turrel a trainee solicitor at Denton Wilde Sapte, where both are members of the Technology, Media and Telecoms sector

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