By Peter Nigos
What should the enthusiastic street photographer remember as he or she heads out for a photo session in the big
city? The answer is pretty simple - you can get by with common sense as long as you keep a reasonable expectation of the rights of other people to some degree of privacy.
Through no fault of yours, the world has become a nervous, restless place. Individual photographers, clearly not taking selfies of themselves and their friends, may arouse suspicion in train stations, airports, government buildings, and even open gathering places. If faced by someone in authority, a reasonable approach dictates that you explain yourself briefly and back off. You may feel you have the right to challenge such an individual, but experience will show that it does not help further attempts at street photography in that area.
You must realize that photography in a private place may be prohibited. There should be a prominent notice in museums or galleries, and sometimes in other areas such as street markets and even individual shopping areas. As part of your common sense approach, withdraw if you have missed the instructions.
Similarly, if someone waves you away and shakes his head when you lift up your camera, be sensible and desist. Don’t start by arguing that “this is a public place and I am entitled to take your photo.” If the photograph you plan is indispensable to your career, you might try to strike up conversation, show him some images on your LCD, and maybe even offer some cash. It is rarely worth all the effort after the spontaneous moment has passed.
Others will object if you try to include their family and especially their children in your snapshot. Again common sense dictates a rapid retreat. You may not be in legal difficulty, but you risk having your equipment torn from your grasp.
Now you get home with 200 images on a memory card, and luckily have not been involved in any altercation. You can do whatever you like with images which contain no recognizable person.
If however you have an image where an individual can be recognized by him or herself, or by others, you have several choices. One is to keep the image in your hard drive and let it be admired by you and your friends. This will not cause you any problems at all (and is likely the current fate of most street photographs).
The second choice is to display your image in a public place as an example of your artistic aspirations. This might be by sharing the image on a photographic site, entry into a competition of a local camera club, submission as a print for a photo exhibition, or publication in a trade journal to promote your photography business. This is likely still not going to be a problem - unless the subject of your photograph finds your image, and has some objection to it. If you are notified of such an objection, most jurisdictions will react less harshly if the offending image is immediately deleted or removed.
You only start to get into real difficulty if the image is of such quality that you can sell or use it for an indisputable commercial purpose. Conceivably this could also include major international photo competitions, where the winning images are promoted world-wide. All companies selling stock photos demand full written consent for release of any images containing recognizable individuals. Very few street photographers appear to attempt to get written consent from their subjects as a routine.
This is best understood by reference to a recent legal case in Canada. Gilbert Duclos took a snapshot of a 17 yr old woman sitting outside a bank in downtown Montreal. The image was subsequently used on the front page of a small literary magazine, where the subject recognized herself, and objected to the way she was depicted. After some ten years of litigation, in 2008 she was eventually awarded $2000 (and costs).
The Supreme Court of Canada wrote: "The right to one’s image is an element of the right to privacy …. If the purpose of the right to privacy is to protect a sphere of individual autonomy, it must include the ability to control the use made of one’s image. There is an infringement of a person’s right to his or her image and, therefore, fault as soon as the image is published without consent and enables the person to be identified.”
Case law means that this example can be quoted by others to justify lawsuits against photographers who do not have written consent to use their image for commercial purposes. There is no evidence to suggest that posting images on the internet would enable such lawsuits, but a slight risk is still present. The millions of images which now exist on the web makes it extremely unlikely that a non-photographer would a) identify himself in your image and b) think it worthwhile to sue you for damages. Note that this argument ignores the presence or absence of specific legislation about photography in public places: the major problem is what you do with your images.
It is true that the judiciary in some countries have expressed more sympathy for street photography, most notably in the United States. In a well known case in New York (2007), a lawsuit against an admittedly commercial photographer was dismissed on the grounds of “artistic expression,” but also because the action was filed too late. The advantage provided to street photographers by this case may not apply in other parts of the world.
As in many other discussions of street photography, the last word belongs to the late Henri Cartier-Bresson, who was as responsible as anyone for establishing this technique as an artistic enterprise. In his old age, he went out of his way to deny the right of others to take his photograph. Given an honorary degree by Oxford University in England, he hid his face with a paper when the flashguns went off.
The author of this article, Mr Nigos, is not a lawyer, but was once arrested in Baghdad for attempting street photography. For those interested in this topic, read more about “Photography and the law” in Wikipedia.