The topic of photography in public is an interesting one which many people harbor misconceptions about. I asked some friends and family what they assumed the law was in regards to taking someone’s photo in a public space and I got a range of results which fell into these categories:
- It’s your legal right, there aren’t really any consequences and/or;
- But they also have the right to ask you to delete the photo or;
- It’s illegal without their explicit permission beforehand and/or;
- It’s illegal without their explicit permission afterwards or;
- It’s illegal without censuring their faces or;
- Only need permission of people that are ‘the focus’ of picture, people ‘in the background’ are excusable.
The photo that I selected from my brief engagement with public photography was chosen because of its unique depiction of work, downtime and the public sphere on private property. The photograph (above), taken at the Wollongong Mall’s food court illustrates co-workers studiously working over some form of paper work. I thought that this was interesting as such a thing is usually a private affair, but this was a quiet afternoon in a usually very public place. Save for a few wanderers, it was mostly deserted. As stated within the Street Photographers Rights 2016 guide by the Arts Law Centre of Australia, my photograph is legal because “a person, in our society, does not have a right not to be photographed” (p.1). This doesn’t, however, make it necessarily morally upstanding.
Joerg Colberg argued in his commentary on the recent criticism of street photographer Garry Winogrand’s work by the San Francisco Museum of Modern Art, that perhaps the practice should be held more accountable to its subjects. Just because it’s legal doesn’t mean it is morally justified, to which he points out the often despicable behavior of the infamous ‘paparazzi’. He goes on to state that ‘the onus is on photographers and not on the public’ and photographers should embrace and respect the opinions of the public, as it is their actions that potentially upset people. My photographing of the subjects did momentarily draw their attention, but it was just a curious glance before they returned to their activity.
Returning again to the Street Photographers Rights document, it’s made clear that public photography for a commercial purpose requires a ‘model release form’ signed by the subjects stating that you have permission to sell that photograph. If we’re being pedantic, a security guard could have told me that I’m on private property owned by the GPT Group and their rules prohibit photographer of their patrons other than via their own security systems. If this were the case, I’d have to comply. However, assuming that such a prohibition doesn’t exist and I didn’t just get lucky, I was well within my rights. The Rights document makes it clear that you don’t even legally have to comply with a police officer’s request to ‘explain or justify your photographic activities’ even if you are arrested (although you might be exercising your rights far enough by then).
As it stands, unless for whatever reason your photograph falls under ‘personal information’ under the Privacy Act (1988), and businesses and agencies which publish that photo would be breaching that law, or it’s for the purpose of some kind of ‘record’. These concerns are invalid, though, when the photographer is acting in a ‘private’ capacity and so can basically photograph whoever he wants in public.
I’ve come to the realization that, unless for one of the express purposes listed above, I don’t think you’re obligated to delete photos of someone even if they asked you to (as long as you’re doing so privately). This is a principle that I believe you shouldn’t adopt though, regardless of how legally safe you are. As a researcher especially, you have a duty to respect your participants and treat them in an ethical manner. This could mean providing for them your work thus far, explaining explicitly what their contribution is to that work, and ensuring that they’re in control of it should they revoke their permission. Ethically, I believe my photograph (primarily) of the two individuals is sound. I’ve not knowingly breached private property rules nor did the subjects object once they noticed they were being photographed. Next time though, I will learn from Colberg and go beyond the lawful obligations by gaining the subjects explicit permission to appear on my blog.
If you have had any experience with someone asking you why you’re photographing them/asking you to delete it, tell me in the comments how you reacted!
Arts Law Centre of Australia 2016, ‘Street Photographer’s Rights Information Sheet’, viewed 9/9/16, <http://www.sfchronicle.com/art/article/Garry-Winogrand-s-uneasy-eye-4377685.php>
‘Steve’ 2016, ‘Coffee shop’, photo, created May 12, 2016, viewed 9/9/16, <http://www.smallbizlabs.com/2016/05/why-people-work-in-coffee-shops-and-why-this-means-coworking-will-continue-to-grow.html>
Colberg, J 2013, ‘The Ethics of Street Photography’, Conscientious Extended, created April 3, 2013, viewed 9/9/16, <http://jmcolberg.com/weblog/extended/archives/the_ethics_of_street_photography/>
LV Criminal Defense, photo, ‘Right of person arrested to make telephone call’, LV Criminal Defense, viewed 9/9/16, <https://www.lvcriminaldefense.com/nevada-criminal-process/procedure-in-criminal-cases/proceeding-to-commitment/arrest-by-whom-and-how-made/right-of-person-arrested-to-make-telephone-call/>
Australian Law Reform Comission, ‘Particular Privacy Issues Affecting Children and Young People’, ALRC Report 108 (tabled August 2008), viewed 9/9/16, <http://www.alrc.gov.au/publications/69.%20Particular%20Privacy%20Issues%20Affecting%20Children%20and%20Young%20People/taking-photographs-an>