Two recent issues led me in to a detailed consideration of the legal position of privacy and photography. In this first instance, while taking photographs at a street Christmas event an officer from my local Council, Brentwood, stopped me and asked for which organisation I was taking photographs. I showed my press card and said I was a freelancer taking photos for sale. The officer told me that I had been followed for an hour by their private security staff and they were concerned I was taking photographs of children. I complained about this first on the grounds it is not illegal to take photographs of children in a public place and second the Council had no legal right to question me and if they had a concern over my activities the correct action would be to report the matter to the police – of whom there were a fair few around. Eventually I got an apology. The second incident was on a Facebook photography page where an individual said I was breaking the Data Protection Act by posting a photograph of a Cosplayer at a public event in London. I was able to point out the exemption under the Act for when people had been informed that photographers were present and were taking photographs likely to be published.
These two incidents got me thinking.
For the avoidance of doubt this article covers the situation in the United Kingdom.
There is no specific law of privacy in the UK. This may be considered a bold statement as there are some restrictions. The Human Rights Act Article eight gives a right to a private and family life. The Counter Terrorism Act makes it an offence to take pictures of constables, members of the armed forces or members of the security services which are of a kind likely to be useful to a person committing or preparing an act of terrorism. Now we move on to a more grey area. The Data Protection act could be breached by taking photographs of individuals without their consent. (Although there seems to be some ambiguity around the issue of “identifiable data”) Fortunately, for me, there is a specific exemption for journalistic activity.
This article will argue that the law has not kept up with the times – the advent of camera phones, drones and the internet make much of the regulations – particularly the Data Protection Act largely unenforceable and the entire concept of privacy open to debate.
Why is this debate important?
Law that is ambiguous is poor law. At the same time; privacy in the modern age is very important. We are under constant surveillance = both via the State with CCTV on every street corner not to mention official drone and satellite surveillance. Nearly everyone has a camera phone and pictures posted on Twitter or Facebook (for example) can be seen by thousands of people in a very short period of time. One of my press photographs that I tweeted was seen by nearly ten thousand people in twenty four hours.
There is a differentiation between public and private places. A private place may be your home or a public toilet. A public place is open to the public – although some “public places” are private land where a different set of rules apply. I have a particular issue with the National Trust that holds land and buildings, supposedly for the public that are open to the public; yet forbids commercial photography on their property – I think the expression may be having their cake and eating it.
So, I can carry out my professional role as a press photographer in a public place without fear of prosecution – although that does not stop sundry council officials, private security staff and members of the public trying to prevent me carrying out my work. I can also take photographs for “personal” use – although quite what that means in the age of the internet is not clear. It seems to mean I can take a photograph but not “publish” it on Facebook or Twitter.
I just about acknowledge the special case of children. Although, there is no law against photographing children in a public place I do appreciate the difficult position that places schools. There have been reports of some local authorities and schools banning parents taking photos at sports days and for school plays – a very sad outcome. I have also noted, as a parent and a photographer the wide-scale breaching of these rules by parents with camera phones; although I know if I got my DSLR out at a school event all hell would break lose. Yet, the same school with a photo ban in place invites a local newspaper photographer to take photos……..
This is an important debate, the balance between personal privacy and the age of camera phones and drones with us, photojournalists, stuck somewhere in the middle.
The bad and the Ugly
Weighting heavily in my mind in this debate are the few who spoil the situation for the many. The growth in revenge porn is a case in point. Intimate photos may be taken which are later published as a form of revenge clearly cross the line. Although I have to say that if someone consents to such intimate photographs without the consideration of how these pictures may be used in the future is perhaps not being totally rational. Exactly the same can be said of sexting. Again the technology for selfies is in almost all hands. Clearly these examples are on one side of the privacy debate.
Now we move in the grey areas. I use Flickr a lot to post photographs. There are photographers and groups that use the site to post voyeuristic photos. These fall in to two groups. The first is photographs taken in public places. On beaches for example, or public parks, of people sunbathing etc. Within this grouping are photos of people behaving in an intimate fashion in a public place. To me this may be morally wrong; but is taking photos in such situations legal? If someone is in a public place should they have an expectation or privacy?
The second grouping is not legal; that is the taking of photos of people in private or with an expectation of privacy; at home, in a public toilet or changing room. Yet there seems to be a constant demand for such photos. Indeed, on some of the internet photo groups I use: models are frequently pictured as if the photographer is acting in a voyeuristic manner.
The Public Interest
I am a strong believer in the public interest defence. Public figures should not be able to hide wrong doing behind super injunctions (so written it is even contempt of court to reveal their existence in some cases). I have a particular scorn for those celebrities who gain their celebrity on the back of reality television shows – yet who object to having their picture taken in public. If you earn your living by being in the public eye then expect to be in the public eye. I do accept that they have the same protection as any other member of the public – no more and no less.
The rich and powerful do try to use the law to hide their behaviours and their hypocrisy. Preaching moral turpitude and the sanctity of marriage while being a drug taking adulterer springs easily to mind as a situation where there may be a strong public interest in revealing these activities – even taking in to account the right to a private and family life. Each case must be judged on its merits in a court of law if necessary.
There are no absolute answer to the issue of privacy and photography. Changing technology and moral standards means that there is quicksand for the unwary. A degree of common sense and personal morality go a long way. Professional photographers are well aware of the sensitives. I have spent long hours waiting for an event talking to fellow professional photographers on these issues. Some feel genuine conflict in their roles and nearly all have a strong personal code as to what is right to both photograph and then subsequently publish. I have taken photos of disturbances – but when I find out these were caused by someone with mental health issues they are deleted and never see the light of day. However, a police officer and I were discussing the subject of terrorism and he said that in his views terrorists must have a mental imbalance to carry out their horrific acts – yet I would have no hesitation about taking a photograph of a terrorist in her act of terrorism.
I have been faced with questions of privacy. People expressing grief after a public atrocity – should I or should I not take photographs? I have to make a judgement call each and every time. There are no clear answers and the law not only does not help – but, for example in the case of the Data Protection Act and the Data Protection Agency just add levels of confusion and mistrust. However, the debate must be had and continue to ensure an appropriate balance between photography, in whatever form it takes, and personal privacy.