NikonGear

Gear Talk => Processing & Publication => Topic started by: Ron Scubadiver on May 07, 2018, 18:59:08

Title: Street Photography in the EU
Post by: Ron Scubadiver on May 07, 2018, 18:59:08
https://idpc.org.mt/en/Documents/Data%20Protection%20and%20Street%20Photography.pdf (https://idpc.org.mt/en/Documents/Data%20Protection%20and%20Street%20Photography.pdf)

The EU GDPR goes into effect this month.  This law is considered to be so troublesome that many websites and services are preparing to block EU users.

My assessment of the above document is photographs of recognizable people taken anywhere in the EU will require consent to be published.  This is what the law already was in France, Norway, Denmark, Germany and Hungary.

Instead of spending my travel dollars in Europe, I will be visiting elsewhere.
Title: Re: Street Photography in the EU
Post by: Akira on May 07, 2018, 19:18:55
Oh, boy, let's hope that the ongoing NG meeting in Granada will not be affected...
Title: Re: Street Photography in the EU
Post by: John Geerts on May 07, 2018, 20:52:30
https://idpc.org.mt/en/Documents/Data%20Protection%20and%20Street%20Photography.pdf (https://idpc.org.mt/en/Documents/Data%20Protection%20and%20Street%20Photography.pdf)

The EU GDPR goes into effect this month.  This law is considered to be so troublesome that many websites and services are preparing to block EU users.

My assessment of the above document is photographs of recognizable people taken anywhere in the EU will require consent to be published.  This is what the law already was in France, Norway, Denmark, Germany and Hungary.

Instead of spending my travel dollars in Europe, I will be visiting elsewhere.
Where does the PDF coming from?  When was it written?
Title: Re: Street Photography in the EU
Post by: Fons Baerken on May 07, 2018, 21:01:41
Where does the PDF coming from?  When was it written?

John take a look here

https://autoriteitpersoonsgegevens.nl/nl/onderwerpen/avg-nieuwe-europese-privacywetgeving/voorbereiding-op-de-avg (https://autoriteitpersoonsgegevens.nl/nl/onderwerpen/avg-nieuwe-europese-privacywetgeving/voorbereiding-op-de-avg)
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 07, 2018, 21:21:03
The implications of this law go way beyond nearly killing off street photography.  Ordinary EU citizens and residents will be upset when they can no longer reach many internet sites.  Large US tech companies who serviced their entire non US market from a European company are moving their non European international operations out of the EU.  This probably will result in job losses.

Probably, not enough street photographers will change their travel plans to make a noticeable difference.
Title: Re: Street Photography in the EU
Post by: Ian Watson on May 07, 2018, 21:22:57
What about NikonGear? Will it be affected?
Title: Re: Street Photography in the EU
Post by: Danulon on May 07, 2018, 21:30:36
I doubt that the european members of the forum will dissolve after May 25th 2018. ;-)
Title: Re: Street Photography in the EU
Post by: Fons Baerken on May 07, 2018, 21:36:28
May need a legal representative when you walk the streets camera in hand.
Now wait for the opportunists that see way to sue photogs for damages.
Title: Re: Street Photography in the EU
Post by: Ian Watson on May 07, 2018, 21:38:39
I doubt that the european members of the forum will dissolve after May 25th 2018. ;-)

Probably not :) However, there is no shortage of photographs of people who were not asked for permission to post said photographs here. I'm assuming that the new law will only apply to future photographs but one never knows.

Actually, where is NikonGear based? Norway isn't in the EU....
Title: Re: Street Photography in the EU
Post by: Ian Watson on May 07, 2018, 21:39:59
Now wait for the opportunists that see way to sue photogs for damages.

Now wait for the people who will pick a fight over it.
Title: Re: Street Photography in the EU
Post by: Birna Rørslett on May 07, 2018, 21:51:26
Nikongear is run from a hosting service in Amsterdam, The Netherlands. The domain is registered to an American provider.
Title: Re: Street Photography in the EU
Post by: Fons Baerken on May 07, 2018, 22:13:38
Now wait for the people who will pick a fight over it.

People love emotional confusion.
Title: Re: Street Photography in the EU
Post by: Airy on May 07, 2018, 22:40:41
I do not know why that paper is published on a Maltese url.

Talking about "reasonable expectations of privacy" - a street is a public place, so I think the expectation is slightly unreasonable. Ironically, in France, you are not allowed to wear a mask on the street (which is a good preventative measure), let alone a burqa,but motorcycle helmets are still allowed.

Otherwise, there is no fundamental difference induced by that law: today, in France, you'll face trouble if and only if somebody files a complaint pertaining to a publication.

That sort of laws will however trigger brazen reactions from "subjects". I remember those idiotic remarks when photographic old buildings; two owners thought I needed permission which is not the case (neither for shooting, nor for publishing, as the architect passed away more than 70 years ago, and as real estate owners do not get any kind of "copyright").

We'll see. I'll keep shooting as usual, and please notice that nobody may complain about your shooting, which is *not* restricted by EU law. You can still invoke "private usage" as an excuse.

The sole idea of blurring faces however stinks - as if humanity should become an anonymous pack (of programmed workers & consumers ?). I remember having seen recent (10 years) photographies of concourse halls edited with such "precautions". Better shoot anthills.
Title: Re: Street Photography in the EU
Post by: Ilkka Nissilä on May 08, 2018, 01:03:30
The way I understand it, the purpose of this legislation is to counter social media and other companies who have collected a vast amount of data about private individuals and it has been difficult to find out what purposes this data is used for (some is just marketing but politicial influencing has been another, which can lead to large consequences to how societies function) and give people back the right to have some degree of control over what data is collected by businesses and for which purposes. Hopefully this will curtail unwanted spamming and targeted advertising. I have stopped long ago answering my phone if I don't know who the caller is - because almost always they're trying to sell you something. Hopefully we can soon opt out of being stored in databases that are used for unknown/unwanted purposes.

I don't think this is meant to affect the photography of people on the street for artistic or journalistic purposes. If you use photos to identify individuals and use that for some purpose (ie. person X was seen in location Y) and build a database of information about the behavior of identified individuals, then yes, this would likely require the consent of the individuals. But in street photos the people are not seen as known individuals but representatives of humanity and so it is not the kind of information which this legislation is concerned with.

Artistic, literary, scientific and journalistic purposes are likely to be exempt. Also personal use. But I am not a lawyer. :) Usually common sense prevails.
Title: Re: Street Photography in the EU
Post by: Les Olson on May 08, 2018, 10:26:52
Calm down. Nothing has changed in European law.

There are two aspects of European law that need to be kept in mind simultaneously but separately: privacy, and data protection. 

Both are based on the European Convention on Human Rights. All EU member states are signatory to the Convention, and all have agreed to make their domestic law consistent with it.  What counts as "consistent with the Convention" is determined by the European Court of Human Rights, and each EU member is bound by the EU treaties to adjust its domestic law to satisfy the rulings of the ECHR.  Some have already done that (France, eg), and some will get around to it sooner or, more likely, later (Italy, eg, where existing privacy law, like a lot of Italian law, dates from Mussolini's time).  Even if a country has not got around to fixing its law, its citizens can appeal to the ECHR, and the ECHR will over-ride the decisions of local courts enforcing the unreconstructed law.  Nothing stops individual EU member states from going beyond the Convention, and the ECHR does not prescribe how, administratively, they have to satisfy the Convention, so there is variation in the administrative details.  The document linked to by the OP is just Malta putting long-standing EU law into effect. 

Article 8 of the Convention says that "Everyone has the right to respect for his private and family life, his home and his correspondence".  The exact wording is important, because its use of "private life" instead of "privacy" is where the things that English-speakers find peculiar come from.  Obviously, your private life is your private life wherever you happen to be.  So the ECHR has said that people cannot photograph you in a way that adversely affects your private life, whether you are in public or not.  Obviously, as far as the Convention is concerned, taking but not publishing a photograph does not affect your privacy, and photographs that do not impinge on your private life can be taken in public and published. 

Because the issue is "respect for private life" French courts have decided that even consent may not allow a photographer to publish photographs after some time has passed. For example, a book of photographs of gang members in France had to be withdrawn because it included photographs of a man taken when he was a gang member but who was no longer associated with gangs. Conversely, a book of photographs of homeless people in Paris could include a photograph of an elegant woman sitting on a park bench because it said nothing about her private life. 

Then there is data protection, which is related but not the same as privacy.  You have a right to control the collection and use of personal data, and, obviously, a photograph of your face is personal data.  So, EU law is that people cannot publish photographs of you - use your personal data - without your consent, and cannot take photographs of you - collect your personal data - if you object. (The statement by Airy that in France you will only get into trouble if someone files a complaint is correct, but misleading for English-speakers, because whereas English and therefore US law makes a sharp distinction between civil wrongs, that private people must sue for, and crimes, that the police intervene against and the state prosecutes, European law does not. The police in Paris cannot arrest you if they see you photographing people, but a person who objects to being photographed does not have to sue you: they can go to the nearest policeman and complain and then the policeman can arrest you).   

US law is moving quite rapidly to the same destination as EU law, although by a different route: copyright and personal image rights.  You will, relatively soon if things go on as they have been, have what amounts to copyright in your image, just as celebrities do now, so people will not be able to create "derivative works" - photographs of you - without your consent.  There is no Constitutional impediment to that.  Americans are fond of saying that "there is no expectation of privacy in a public place".  This is not a correct statement of US law: there is an expectation of privacy in public places that are set up to offer some degree of privacy - a public toilet being the obvious example.  A more fundamental point is that the statement that there is no expectation of privacy in a public place is based on court decisions about the 4th Amendment prohibition of unreasonable search and seizure.  There is no Constitutional right to reasonable search and seizure, so nothing prevents the law saying there is an expectation of privacy in public.  It is well-established that the 1st Amendment does not protect breaches of copyright. 
Title: Re: Street Photography in the EU
Post by: Ilkka Nissilä on May 08, 2018, 11:46:57
Then there is data protection, which is related but not the same as privacy.  You have a right to control the collection and use of personal data, and, obviously, a photograph of your face is personal data.  So, EU law is that people cannot publish photographs of you - use your personal data - without your consent, and cannot take photographs of you - collect your personal data - if you object.

I don't think a street photograph of a person qualifies as personal data (in the sense meant in the GDPR) unless you tag it with identifying information about the person so it can be easily searched and is stored in a database. Facial recognition has been suggested as permitting identification of people from photos but I don't think it will work well when you have billions of potential subjects to identify. It might work well when you have a database of criminals or suspects to search and identify in photographs, but when doing an open unlimited search to identify anyone, and everyone, I doubt it would be able to have much success. Street photographs often aren't showing persons in close-ups and they are often technically modest in quality, which reduces the likelihood of positive identification. Also the purpose of storing the images matters. If it is to identify people participating in a demonstration and target those individuals in some campaign -  the GDPR  is likely to apply. But street photos are not generally made for the purposes of identifying people or gathering information about them; they're made for personal enjoyment and artistic purposes. This excludes them from GDPR. Publication is another matter but it is a separate issue.

In the EU, individual countries have their own laws, and French law's interpretation of privacy or the rights of the subject may not be the same as another country's.
Title: Re: Street Photography in the EU
Post by: Les Olson on May 08, 2018, 12:56:40
Individual EU countries have their own law, but all those laws have to conform to the European Convention on Human Rights as interpreted by the European Court of Human Rights.  Where they don't it is because no one from that country has yet taken a case to the ECHR, so courts in that country are free to interpret their country's law as written. Once a citizen of that country has taken a case to the ECHR the courts are obliged by the EU treaties to decide subsequent cases according to the decisions of the ECHR. 

The GDPR, on the other hand, is a regulation, rather than a directive, so it applies in its entirety, throughout the EU, immediately, with no action by member states required.

A street photograph is personal data.  The GDPR website says that personal data is "Any information related to a natural person or ‘Data Subject’, that can be used to directly or indirectly identify the person. It can be anything from a name, a photo, an email address, bank details, posts on social networking websites, medical information, or a computer IP address" [emphasis added] (https://www.eugdpr.org/gdpr-faqs.html). So it only isn't personal data if the person is not recognisable.  However, the GDPR "does not apply to the processing of personal data by a natural person in the course of a purely personal or household activity and thus with no connection to a professional or commercial activity." (s18).  (Natural persons are people, as opposed to "legal persons" such as corporations or partnerships). 
Title: Re: Street Photography in the EU
Post by: Ilkka Nissilä on May 08, 2018, 13:14:37
https://www.hipaajournal.com/gdpr-exemptions/

"A number of other exemptions are provided for in Articles 85, 86, 87, 88, 89, 90, and 91. Article 85, for example, Processing and freedom of expression and information,establishes the right for member states to introduce laws which balance the rights to privacy of personal data with the rights to freedom of expression for “journalistic […] and […] academic, artistic or literary expression”."

So member states can introduce laws which strike a balance between the rights of freedom of expression and privacy of personal data. This would then depend on the country.

Although the UK is leaving the EU (at least for the time being it would seem so), the UK government's position is to implement GDPR.

RPS website discuss the implications on street photography:

http://www.rps.org/special-interest-groups/contemporary/blogs/2018/february/gdpr-and-street-photography

in the comments section:

"
Ivor
01 March 2018

hi, I have communicated with the ICO about this. they say:

"The GDPR allows member states to introduce exemptions/derogations. These will be set out in the Data Protection Bill - it's likely there will be a similar exemption for personal data processed for the purposes of "journalism, literature and art" but as the Bill has not yet been approved and adopted by Parliament, we can't yet confirm what those exemptions will be.

In relation to street portraits of individuals; these will not be 'biometric' data. ""

I don't think we can say at this point how these regulations will be implemented in practice and how it differs depending on country.

Even if it were decided to take a strict position in favour of privacy, it would be impossible to extend the regulation to everyday photographs of people on the street. Every day as I walk in downtown area of Helsinki, I can see people taking pictures of people on the streets using their mobile phones, cameras etc. and they do it and I know some of those photos will be put on social media sites. No one seems to object to this activity these days it seems it has become such commonplace. 10-20 years ago this was not the case and a street photographer would easily be confronted because the activity was somewhat unusual. Now it is so common there is literally nothing that can be done to stop it more than you can prevent rain drops from falling out of the sky.

I'm certain that the intention of the GDPR is not to prevent this common, everyday activity from happening.

I just read about GDPR on the Finnish data protection official's (I don't know how to translate it) web site and although GDPR starts to be in effect on May 25 throughout the EU, member states will be issuing national legislation which augments and makes more specific rules regarding the EU regulation. There seem to be some freedom for the member nations to make their own more specific legislation, as usual. Only after these national laws are in effect will there be some clarity regarding to how these things are to be interpreted, and I would guess this to take some time.

Excemptions mentioned in the Finnish site include "journalistic, artistic and literary expression and a natural person's private use". They specifically mention publication of photos in a blog that can be interpreted as a journalistic purpose (excemption).  I think street photography published as art is likely to be considered under the "artistic" excemption, however, of course these things can be questioned by the identifiable person in the photograph and then there may be court cases but I think given the prolificacy of photographs of people published online without consent I don't think this will be a common thing to happen, unless the photos in question show the person in negative light or is used in an advertisement without consent (in which case a person's right to their image applies and compensation would be likely). While the French seem to intepret the person's right to their image to apply also outside of commercial use, it doesn't appear to be the prevailing interpretation in my country.

The data protection official's overall conclusion is that photography needs to be evaluated using the whole legislation not just using an individual piece of it, this includes data protection of personal data, freedom of speech, criminal law, the guidelines of journalism, contractual obligations, and other applicable legislation. In Finland the freedom of speech is protected by the constitution.
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 08, 2018, 13:54:31

US law is moving quite rapidly to the same destination as EU law, although by a different route: copyright and personal image rights.  You will, relatively soon if things go on as they have been, have what amounts to copyright in your image, just as celebrities do now, so people will not be able to create "derivative works" - photographs of you - without your consent.  There is no Constitutional impediment to that.  Americans are fond of saying that "there is no expectation of privacy in a public place".  This is not a correct statement of US law: there is an expectation of privacy in public places that are set up to offer some degree of privacy - a public toilet being the obvious example.  A more fundamental point is that the statement that there is no expectation of privacy in a public place is based on court decisions about the 4th Amendment prohibition of unreasonable search and seizure.  There is no Constitutional right to reasonable search and seizure, so nothing prevents the law saying there is an expectation of privacy in public.  It is well-established that the 1st Amendment does not protect breaches of copyright.

I thought personal image rights only applied to commercial use.  In other words, use in advertising.  Copyright protection seems far fetched.  Can you provide a link to an appeals court decision supporting any of this?
Title: Re: Street Photography in the EU
Post by: Les Olson on May 08, 2018, 14:44:22
You can read the full English text at https://gdpr-info.eu/

The wording of s85 is that "For processing carried out for journalistic purposes or the purpose of academic artistic or literary expression, Member States shall provide for exemptions [...] if they are necessary to reconcile the right to the protection of personal data with the freedom of expression and information."  The key point is that it says "if they are necessary" [emphasis added].  Each country gets to decide for itself if they are necessary, and you might find that Victor Orban, say, has a different view to you and me about how much and what kind of freedom of expression is necessary. There is a "recital" linked to that section - ie, a non-binding comment - that says "In order to take account of the importance of the right to freedom of expression in every democratic society, it is necessary to interpret notions relating to that freedom, such as journalism, broadly", so the intention is that there will be a broad-based exemption, but it is up to each country. 

"Biometric data" is defined as data that allows a person to be uniquely identified.  Biometric data is only a subset of "special data", meaning sensitive information for which extra protection is warranted.  Photographs "should not systematically be considered to be processing of special categories of personal data as they are covered by the definition of biometric data only when processed through a specific technical means allowing the unique identification or authentication of a natural person" [emphasis added]. However, another subset of special data is "personal data revealing racial or ethnic origin", so photographs could fall under that category.
Title: Re: Street Photography in the EU
Post by: Les Olson on May 08, 2018, 14:51:14
I thought personal image rights only applied to commercial use.  In other words, use in advertising. 

As of today, that is correct.  But why should there be that restriction?  The reason to mention copyright is that the language of personal image rights law is very similar to copyright law, which makes it very easy for courts to see a way to extend image rights because copyright law is so well-defined. 
Title: Re: Street Photography in the EU
Post by: Ilkka Nissilä on May 08, 2018, 16:30:57
the intention is that there will be a broad-based exemption, but it is up to each country. 

Yes. But it is likely that those countries who had such exemptions in the past will have them in the future as well. In general, nations in the EU tend to want to preserve their own cultures and individual ways and change as little as possible upon legislation issued by the EU.  The clear focus of this legislation is to take a step back into a world before companies started to collect massive amounts of data on us.  It is not intended to limit the journalism or arts. I believe the intention of the legislators is important as it is likely that the actual application of the law follows the intention.

Of course, if the government or the people of a member country want to side on stronger protections on the individual then they can continue to implement such national legislation. If it turns out that they went with too strict rules  then they can change it and take a step back at a later time. I haven't been in France in a long time and I don't know if the people there really believe that a photograph of a stranger on the street published violates the rights of that person but in Helsinki the people on the street just generally laugh about it and I can't recall in many years any negative incident with this activity. But I think it would be a mistake to assume that it is the same everywhere. I can see how taking of a photograph would be considered invasive in some cultures. In such cases it is best to respect the wishes of the subjects.

I do believe that the social media and large companies got far too much information and power - they offered a "free" service in a time when we were used to having to pay for almost every service provided by a private company. Now we know what the price of that "free" service is (to the point where elected governments can be changed in part thanks to the use of such data to find the people who are likely to be persuaded to change their vote) and there has to be a step back. I am delighted if the spamming and targeted advertising one day stops.

Quote
"Biometric data" is defined as data that allows a person to be uniquely identified.  Biometric data is only a subset of "special data", meaning sensitive information for which extra protection is warranted.  Photographs "should not systematically be considered to be processing of special categories of personal data as they are covered by the definition of biometric data only when processed through a specific technical means allowing the unique identification or authentication of a natural person" [emphasis added]. However, another subset of special data is "personal data revealing racial or ethnic origin", so photographs could fall under that category.

I think the intention of collection of the data and how it is used is key. If the purpose is to identify the persons in the photos and record their activities then this would be considered personal data and governed by the legislation. However, if it is just artistic application without identification algorithms used then I don't think it would be considered biometric or personal data. Now, then if one goes and publishes the images and then someone else downloads them and applies facial recognition software then I would think the latter would need the permission of the subjects. As for whether the publication of the images of strangers without permission is legal, would depend on the country's specific legislation.  I know in my country publication of amateur street photos of strangers on photographers' social media sites has been ok in the past, but I don't know if this is changing (especially if the images do not fall under the "artistic" or "journalistic" umbrellas). I suspect not, because of the popularity of this activity and how people seem to accept that being photographed just happens a lot of the time when walking in public. I think the camera phone made this happen - more people walk with cameras in their pockets and they also understand the motivation of photography better and don't regard there any harm.
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 08, 2018, 17:42:48
Les, I find your explanation of the exception provision in EU law to be very helpful, but on US law I disagree.  Freedom of speech is such a bedrock principle in the US that it makes restrictions of photography really difficult.  In particular, a Texas statute dealing with voyeuristic photography was struck down by the State courts, which almost never invalidate state criminal statutes.

The problem with exceptions is it takes action on the part of legislative bodies.  Perhaps the press will be the constituency which seeks change and with luck the exception will be broad.  As it stands right now the situation is dire because the aggrieved person does not have to hire a lawyer.  They can go to the data protection agency for relief.

I continue to believe there will be an uproar as ordinary folks in the EU find themselves locked out of all kinds of internet resources. 
Title: Re: Street Photography in the EU
Post by: Danulon on May 08, 2018, 22:03:57
I continue to believe there will be an uproar as ordinary folks in the EU find themselves locked out of all kinds of internet resources.
On the short run certainly. On the long run other companies will be eager to fill the gap.
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 09, 2018, 01:56:41
On the short run certainly. On the long run other companies will be eager to fill the gap.

Others will jump in, but the resulting experience will be inferior to what exists now.
Title: Re: Street Photography in the EU
Post by: Frank Fremerey on May 09, 2018, 07:31:00
shoot, publish, delete fast when asked by a right holder.

there are billions of smartphones with cameras and people "publishing" shots by the billion a day. Try stopping the rain by sueing a drop?

PS: Nikongear is not a publishing platform. Nikongear is friends and family sharing their photos, look at the number of views per picture!!!

If necessary Admins could easily not show any photos to non paying members.
Title: Re: Street Photography in the EU
Post by: Airy on May 09, 2018, 07:38:55
Agreed. And (as experience shows) the problem rather lies with possible reactions while shooting, from people not knowing the law, rather than the publication itself, to which the law applies.
Title: Re: Street Photography in the EU
Post by: Frank Fremerey on May 09, 2018, 07:48:47
Agreed. And (as experience shows) the problem rather lies with possible reactions while shooting, from people not knowing the law, rather than the publication itself, to which the law applies.

I tell the that I am allowed to take any picture but I am not allowed to publish every picture.

And: It is more often people ask me for my address because they want my picture for their private use...

More annouying are property rights. Half the banks of the river Thamse in London are private ground and the owners police their right to make you not take any photos. Also the backdrop of "copyrighted" buildings in the public space can make publishing difficult. I hate that much more.

All property has originally been a rob from the public goods except for creative original work that can be attributed to a person
Title: Re: Street Photography in the EU
Post by: Ilkka Nissilä on May 09, 2018, 13:47:35
I continue to believe there will be an uproar as ordinary folks in the EU find themselves locked out of all kinds of internet resources.

I don't believe that. I don't want to use services that do data mining of my e-mails or use cookies to track my activities on my computer and associate those with my personal data. I don't want any company to present a service and in fact do something undisclosed in the background. If they do that, they are at the very least unethical and hopefully legislation will consider those activities criminal in the future.

If a company providing a service is open about why they need my data and how it is used, there should not be a problem with GDPR compliance. Anyway in the US probably they will have some similar legislation in the future.
Title: Re: Street Photography in the EU
Post by: armando_m on May 09, 2018, 14:37:46
I don't believe that. I don't want to use services that do data mining of my e-mails or use cookies to track my activities on my computer and associate those with my personal data. I don't want any company to present a service and in fact do something undisclosed in the background. If they do that, they are at the very least unethical and hopefully legislation will consider those activities criminal in the future.

If a company providing a service is open about why they need my data and how it is used, there should not be a problem with GDPR compliance. Anyway in the US probably they will have some similar legislation in the future.
Right, and that is what GDPR is all about
Title: Re: Street Photography in the EU
Post by: Jack Dahlgren on May 09, 2018, 17:31:24
I don't believe that. I don't want to use services that do data mining of my e-mails or use cookies to track my activities on my computer and associate those with my personal data. I don't want any company to present a service and in fact do something undisclosed in the background. If they do that, they are at the very least unethical and hopefully legislation will consider those activities criminal in the future.

If a company providing a service is open about why they need my data and how it is used, there should not be a problem with GDPR compliance. Anyway in the US probably they will have some similar legislation in the future.

Indeed, that is the reason behind it. If you read the text of GDPR it is clear what it is intended to do and allows legislation for members of the Union to tailor it as necessary for their traditional uses of personal information (lists of employees, etc.)
Title: Re: Street Photography in the EU
Post by: Airy on May 09, 2018, 19:29:14
More annouying are property rights. Half the banks of the river Thamse in London are private ground and the owners police their right to make you not take any photos. Also the backdrop of "copyrighted" buildings in the public space can make publishing difficult. I hate that much more.
All property has originally been a rob from the public goods except for creative original work that can be attributed to a person

I did not see that aspect in the GDPR law. In current French law, the sole rights to restrict publication are with the architects (or their heirs, until 70 years after their death).
Another paragraph states, quite commonsensically, that the published picture should not deprive owners from enjoying their property without abnormal trouble. If I publish the picture of the house with the address and a message telling "pass by, ring, and get a free cup of coffee", I might get sued. But this does not imply any property right concerning the image itself.
Title: Re: Street Photography in the EU
Post by: Les Olson on May 09, 2018, 19:46:45
Freedom of speech is such a bedrock principle in the US that it makes restrictions of photography really difficult.  In particular, a Texas statute dealing with voyeuristic photography was struck down by the State courts, which almost never invalidate state criminal statutes.
The Texas statute was struck down because it was overly broad, since it criminalised any photograph taken without consent and aimed at sexual arousal.  However, voyeuristic photography is criminalised in 12 states and the laws have not been struck down, although most of them require the person photographed to be on private property, or require that the images show actual body parts.  Since 2004 it has been a Federal crime to photograph people's "private areas" on Federal property, and that law has not been struck down.

The 1st Amendment does not mean you can say whatever you like. The USSC has said repeatedly that the 1st Amendment protects communication; the bar for what counts as communication is set very low, but meaningless babble is not protected.  The biggest limitation is that speech can be restricted for other legitimate purposes. Famously, you can't shout "Fire" in a crowded theatre when there is no fire, because that puts other people in danger.  You can't use obscene or offensive language. You can't use someone else's words, because that breaches copyright.  Perhaps the most interesting case is one from the 1960s: a man protesting against the Vietnam War burned his draft card, and was charged with destroying Federal property - the draft card. The USSC accepted that burning the card was speech, but found that the law that made burning the draft card a crime did not breach the 1st Amendment because burning the draft card was not the only way he could make his protest. 

There has only been one case concerning photography not in relation to news reporting decided on 1st Amendment freedom of expression grounds.  That is Nussenzweig vs Di Corcia (https://en.wikipedia.org/wiki/Nussenzweig_v._DiCorcia), which was decided by the New York State courts.  Di Corcia is a big time photographer - why, someone will have to explain to me.  He had set up a camera in Times Square so it could photograph people walking past without their knowledge, selected a bunch of the resulting images, and made a gallery show and book. Erno Nussenzweig was one of the people in the gallery show and book.  Nussenzweig is an Orthodox Jew, and found the fact that he had been photographed in this way distressing because, in his view, it breached the 2nd Commandment ("Thou shalt not make unto thee any graven image"). Plus his family had died in Auschwitz, so I think you can understand him being twitchy about people doing things to him without asking.  Personally, I think he had a strong case, and I think you have to wonder if the case would be decided the same way in the post-Hobby Lobby world.

One of the points this case illustrates is the pointlessness of making the right to privacy-in-public depend on suing the photographer.  Many people noted that Nussenzweig's identity would never have been revealed except for the court case, so his privacy was violated far more by his attempt to protect it than by the original violation. So, only making breaches of privacy a crime prosecuted by the state will work.
 
Title: Re: Street Photography in the EU
Post by: Frank Fremerey on May 09, 2018, 22:40:32
I did not see that aspect in the GDPR law. In current French law, the sole rights to restrict publication are with the architects (or their heirs, until 70 years after their death).
Another paragraph states, quite commonsensically, that the published picture should not deprive owners from enjoying their property without abnormal trouble. If I publish the picture of the house with the address and a message telling "pass by, ring, and get a free cup of coffee", I might get sued. But this does not imply any property right concerning the image itself.

This law is about privacy.

if you stand on private ground you need a property release additional to the copyright release or the recognizable person release
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 09, 2018, 22:42:27
The Texas statute was struck down because it was overly broad, since it criminalised any photograph taken without consent and aimed at sexual arousal.  However, voyeuristic photography is criminalised in 12 states and the laws have not been struck down, although most of them require the person photographed to be on private property, or require that the images show actual body parts.  Since 2004 it has been a Federal crime to photograph people's "private areas" on Federal property, and that law has not been struck down.


There has only been one case concerning photography not in relation to news reporting decided on 1st Amendment freedom of expression grounds.  That is Nussenzweig vs Di Corcia (https://en.wikipedia.org/wiki/Nussenzweig_v._DiCorcia), which was decided by the New York State courts.

I am very familiar with the Texas statute as I live there.  The opinion is a bit more involved than what you describe, and the same logic can be applied to the criminalization of most photography.  The 12 state statutes you refer to are most likely unconstitutional.  I am not familiar with the federal statute.

The Nussenzweig litigation never resulted in a definitive appeals court decision.   
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 11, 2018, 15:53:05
https://ivorphotography.co.uk/blog/2018/03/01/gdpr/ (https://ivorphotography.co.uk/blog/2018/03/01/gdpr/)

This article says street photography is not biometric data "according to the ICO".  I don't know if the ICO is EU wide or if this is limited to the UK which is on it's way out of the EU anyway.

Then again, at least one person questioned the providence of the document in my OP asking why it was on a server in Malta.

Title: Re: Street Photography in the EU
Post by: Ilkka Nissilä on May 11, 2018, 19:08:56
This article says street photography is not biometric data "according to the ICO".  I don't know if the ICO is EU wide or if this is limited to the UK which is on it's way out of the EU anyway.

Right, but the UK want to do business with the EU in the future as well and in practice it is easiest to follow the same rules (which is what they're planning on doing with respect to GDPR).

ICO is a UK government authority.
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 12, 2018, 01:59:27
Right, but the UK want to do business with the EU in the future as well and in practice it is easiest to follow the same rules (which is what they're planning on doing with respect to GDPR).

ICO is a UK government authority.

Thanks for the clarification on ICO.  I wouldn't go so far to say the UK will follow the same rules, but they want to avoid rules which clash with the EU for sure.

That document I found continues to worry me and I continue to wonder if it is the rule, a proposal or not genuine.

Maybe I just shoot the girls who are wearing sunglasses or with perfectly shaped back sides.... 
Title: Re: Street Photography in the EU
Post by: Les Olson on May 12, 2018, 14:29:50
The opinion is a bit more involved than what you describe, and the same logic can be applied to the criminalization of most photography.  The 12 state statutes you refer to are most likely unconstitutional. 

The Texas statute at issue said that photographing someone was a crime if "(1) the person being photographed or recorded is not in a bathroom or private dressing room, (2) the photograph or recording of the person is made without that person’s consent, and (3) the photograph or recording is made with the intent to arouse or gratify the sexual desire of any person".   Texas and many other states have Peeping Tom laws that make it a crime to spy on, including photographing, someone who is in a bathroom or private dressing room or in their own home, and there is no question of those laws being unconstitutional. Texas also has a statute making harassment by telephone a crime, and the Texas courts have found that law does not breach 1st Amendment protections, because telephone harassment "invades the substantial privacy interests of another (the victim) in an essentially intolerable manner".   

Obviously, the law raises an issue of freedom of speech.  But laws that impinge on freedom of speech are not, simply for that reason, unconstitutional.  The USSC has set out very clear standards for when laws that impinge on fundamental freedoms are constitutional: they must serve a compelling government interest (which may not be that the fundamental freedom concerned is a nuisance) and the measures proposed must be narrowly drafted, so as to have the least possible affect on the freedom while achieving the government's aim. In the case of "time, place and "manner" restrictions, such as noise abatement laws, the narrowly drafted test is satisfied if there are ample alternative opportunities for free speech. 

The Texas court did not find that protecting women from scumbags was not a compelling government interest, or that the statute was not rationally connected with that aim.  It found that the statute was unduly broad: a shoe fetishist, eg, could be photographing women's feet, and would be committing a crime, so the statute was not the least restrictive way the aim of preventing up-skirting could be achieved.  It is very unlikely that a more carefully worded statute would be unconstitutional.

The Texas court did not find that you can be photographed anywhere, anytime. Quite the opposite: it said that the idea "that a person consents to being photographed or video-recorded merely by appearing in public could lead the government to conclude that it could use cameras to record all of a person’s public activities all of the time—surely a questionable proposition".
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 12, 2018, 17:51:39
Les, much of what you are referring to is known as dicta.  These are side comments by the court used in reaching their decision, but not the black letter law they set down.  The analysis is based on 9 (iirc) categories of speech which may be regulated by criminal statutes, and that the law in question did not regulate one of those specific categories.  One of the categories is child pornography, for example.  Anything the court did not say, is meaningless.

Obviously, there are people who don't like street photography and would like to outlaw it.  In the US , that's not possible.  Anyway, I am sure of my rights in the US.  It's the EU which worries me. 
Title: Re: Street Photography in the EU
Post by: Airy on May 12, 2018, 22:48:35
This law is about privacy.

if you stand on private ground you need a property release additional to the copyright release or the recognizable person release

I was referring to shots taken from the outside, of course.
Title: Re: Street Photography in the EU
Post by: Les Olson on May 13, 2018, 11:44:47
I am aware of the difference between "ratio decidendi" and "obiter dicta", but since I and most people here will never have to argue a case in Texas the distinction in relation to a Texas court's judgement is academic.

The State of Texas argued that a person in public has, simply by appearing in public, consented to being photographed.  They argued that because they wanted to argue that the "no consent" requirement of the Texas statute meant that only photographs of parts of the victim not exposed to view would be criminalised.  The court's rejection of that argument is ratio, but what is interesting is that the obiter reveal that the court was concerned that the State's argument would create a right to unrestricted public photography, which they rejected because that would open the door to pervasive government surveillance (or, presumably, pervasive surveillance by commercial interests). 
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 13, 2018, 23:23:36
I am aware of the difference between "ratio decidendi" and "obiter dicta", but since I and most people here will never have to argue a case in Texas the distinction in relation to a Texas court's judgement is academic.
 

That's well and good, but tell me something about what to do in the EU.
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 13, 2018, 23:38:02
http://cyberlaw.stanford.edu/packets003560.shtml (http://cyberlaw.stanford.edu/packets003560.shtml)

The above link is about French plaintiffs trying to enforce a French judgment in the US against US defendants for publishing photos taken at a fashion show.  The US courts refused to enforce the judgment because it was inconsistent with US first amendment rights.

The case was appealed and the US defendants ultimately won, but based on the defense that it was fair use under copyright law.   That's still a first amendment defense, but not one based on privacy.

There is also a US statute passed in 2010 blocking the enforcement of foreign defamation judgments, unless the defendant received protections comparable to those provided by the first amendment in the US.

I am going to do some more looking in this direction.

A more up to date expression of US law than Nussenzweig (which never resulted in a conclusive appeals court decision) involved the photographer Arne Svenson's show "Neighbors"  He photographed people living across the street who left their curtains open.  The court held the plaintiffs had no reasonable expectation of privacy because they left their curtains open, even in their own home.

The EU rules don't directly deal with privacy.  It hinges on whether a photograph of a recognizable person, absent any other identifying data is biometric data.  I guess its hats, sunglasses, strong shadows and ass shots from now on...
Title: Re: Street Photography in the EU
Post by: Les Olson on May 14, 2018, 12:48:57
That's well and good, but tell me something about what to do in the EU.

France has the best (AFAIK) internet resources in the EU, so it is convenient to cite them, but EU law is essentially the same everywhere in the EU.  There are two areas of law that affect photography: image rights and privacy, which overlap but are not the same.

As far as image rights go, it is all set out at https://www.service-public.fr/particuliers/vosdroits/F32103  Chaque individu a un droit exclusif sur son image et l'utilisation qui en est faite. Vous pouvez vous opposer à sa fixation, conservation ou à sa diffusion publique sans votre autorisation, sauf cas particuliers. Avant toute diffusion de votre image, le diffuseur doit obtenir votre accord écrit en précisant quand et où il a obtenu cette image. Cet accord est donné pour un usage précis et ne doit pas être généralisé. Votre consentement à être photographié ne donne pas pour autant votre accord pour la diffusion de l'image (par exemple sur internet).  Même dans un lieu public, l'accord des personnes apparaissant de manière isolée et reconnaissable est nécessaire pour la diffusion de l'image. 

There are exceptions: image rights do not prevent taking and publishing d'images d’événements d'actualité qui peuvent être publiées sans l'autorisation des participants au nom du droit à l'information ou de création artistique; d'images de personnalités publiques dans l'exercice de leur fonction (élus par exemple) à condition de les utiliser à des fins d'information; d'images illustrant un sujet historique; sous réserve de ne pas porter atteinte à la dignité de la personne représentée.

That is, you can photograph people in public unless they object, in which case you must stop (but if they are having sex, see next section). You cannot make any use - including posting on, eg, NikonGear Revival - of a photograph showing "isolated and recognisable persons" wherever it was taken and regardless of whether the person consented to its being taken, without their written agreement, except in news reporting, artistic creation, photographs of public officials exercising their functions, and of historical events, provided that the photographs do not impair the dignity of the person shown.

Privacy is dealt with under the penal code; s226-1 (https://www.legifrance.gouv.fr/affichCodeArticle.do;jsessionid=51402D096E8C28A8FF346C5E713DF452.tplgfr21s_2?idArticle=LEGIARTI000006417929&cidTexte=LEGITEXT000006070719&dateTexte=20180514&categorieLien=id&oldAction=)

Est puni d'un an d'emprisonnement et de 45 000 euros d'amende le fait, au moyen d'un procédé quelconque, volontairement de porter atteinte à l'intimité de la vie privée d'autrui : 1° En captant, enregistrant ou transmettant, sans le consentement de leur auteur, des paroles prononcées à titre privé ou confidentiel ; 2° En fixant, enregistrant ou transmettant, sans le consentement de celle-ci, l'image d'une personne se trouvant dans un lieu privé.  Lorsque les actes mentionnés au présent article ont été accomplis au vu et au su des intéressés sans qu'ils s'y soient opposés, alors qu'ils étaient en mesure de le faire, le consentement de ceux-ci est présumé.

S226-2-1 amplifies this section by saying Lorsque les délits prévus aux articles 226-1 et 226-2 portent sur des paroles ou des images présentant un caractère sexuel prises dans un lieu public ou privé, les peines sont portées à deux ans d'emprisonnement et à 60 000 € d'amende. 

S226-8 says Est puni d'un an d'emprisonnement et de 15 000 euros d'amende le fait de publier, par quelque voie que ce soit, le montage réalisé avec les paroles ou l'image d'une personne sans son consentement, s'il n'apparaît pas à l'évidence qu'il s'agit d'un montage ou s'il n'en est pas expressément fait mention.

That is, you can go to gaol for a year for taking, or posting on the internet, a photograph of a person who is in a private place (even if you are in a public place), unless they saw you and knew you were photographing them and did not, in any way, indicate that they objected. If you take photographs of a sexual nature of people, whether they are in public or private, you can go to gaol for two years.  You cannot publish an extensively post-processed image of someone without their consent, unless the manipulation is obvious or specifically stated.   


Title: Re: Street Photography in the EU
Post by: Jacques Pochoy on May 14, 2018, 13:33:56
Nice and precise resume of what goes on in France ! Thanks Les :-)
The EU "RGPD" doesn't change much as it is more about selling one's private database to another (web sites, employer's data on employees, etc.). Although we seem to have the CNIL (Commission Nationale de l'Informatique et des Libertés) that keeps its own rights over the RGPD (still in debate)...
Title: Re: Street Photography in the EU
Post by: Anthony on May 14, 2018, 13:59:56
UK law on these issues is not the same as French law.
Title: Re: Street Photography in the EU
Post by: Ilkka Nissilä on May 14, 2018, 14:18:46
This is an interesting page:

https://commons.wikimedia.org/wiki/Commons:Country_specific_consent_requirements

I wouldn't make any general conclusions about the applicability of EU law in each country (e.g. in case of Directives in order to be valid it must be translated into national law and in this process there can be changes made per country). Although the GDPR is a regulation (applicable in all EU countries) again it has been stated that there can be national augmentations to the GDPR which can lead to differences in the final interpretation of the law in each country, including whaich exceptions are implemented.

EU is not a federation but a union of countries which their own peculiarities.

The artistic use is fairly broad umbrella and again whether something classifies as artistic is open for debate.
Title: Re: Street Photography in the EU
Post by: Les Olson on May 14, 2018, 16:58:45
All EU countries are signatories to the European Convention on Human Rights, and have already incorporated the treaty into their domestic law.

For example, the Human Right Act, 1998, does that for the UK, which reproduces the Convention as Schedule 1 of the Act. The UK, like all EU members, has the right to make derogations and reservations, and has done so, twice in relation to detention without trial in Northern Ireland, and once in relation to rights to education, but not in relation to Article 8 (the one about privacy). 

Each country's courts can interpret the Convention according to their own legal traditions, but the Convention and interpretations of it by the European Court of Human Rights have to be followed: s2 of the Human Rights Act, 1998, eg, says

"A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—
(a)judgment, decision, declaration or advisory opinion of the European Court of Human Rights,
(b)opinion of the Commission given in a report adopted under Article 31 of the Convention,
(c)decision of the Commission in connection with Article 26 or 27(2) of the Convention, or
(d)decision of the Committee of Ministers taken under Article 46 of the Convention"   

and s3 says "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights" (there is a lot of delightfully Gilbert and Sullivan-ish stuff about what to do while the government sorts the law out if it is impossible to square existing legislation with the Convention).

That is what happened in the son-of-JK Rowling case, where an English court, fulfilled its obligation to follow ECHR decisions and so "held, for the first time, that the publication of an inoffensive photograph of an everyday activity in the street could amount to an invasion of privacy. This brings English privacy law more closely into line with the position in France" (https://www.theguardian.com/media/2008/may/08/privacy.medialaw). 

The point is that the law in England only changed with this court decision, in 2008, although the Human Rights Act was passed in 1998, because it was only then that somebody felt strongly enough and, more importantly, had enough money to take the case to court and then to the Court of Appeal after the first judge found for the photographer.  There is a handy digest of image rights cases that have gone to the ECHR at https://www.echr.coe.int/Documents/FS_Own_image_ENG.pdf 

Not all EU countries are as organised as France and the UK with regard to legislation: many have laws on the books left over from before they incorporated the Convention into their law, some forgot to include the equivalent of s2 of the UK Human Rights Act in their laws incorporating the Convention. So the courts in those countries may not apply Section 8 at all, or they may not apply it correctly. The Wikimedia list is reporting the law as it stands before the ECHR issues a ruling that a country's courts have failed to enforce Article 8.

Even when the ECHR does issue a decision, the law in a member state does not automatically change. To take one example, Wikimedia says that Greece does not require consent to take or publish photographs, but in 2009 that law was found inconsistent with Article 8 in the case of Reklos & Davourlis v Greece.  The Greek parliament ought to have amended Greek law, if necessary, to take account of that ruling, and even if they don't, the next time such a case arises in Greece the courts ought to apply the law as set out in the ECHR decision, but there is no way to force them to do either except for the ECHR to keep finding against them on appeal. 

Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 14, 2018, 17:20:58
I am fairly sure French law is more restrictive than the norm.  However, it is similar to Norway, Denmark, Hungary, Germany and  Quebec in Canada.

The JK Rowling case may be more about protecting children and the targeting of celebrities by paparazzi and not stand for the general proposition that publication of any non offensive photographs may be blocked because the subject doesn't like it.  Photographing celebrities or their family members isn't street photography per se even if it sort of fits the definition.  I don't think it brings the UK in line with France at all.

I continue to ponder my own situation of wanting to do street photography in Spain, Italy or Greece and not publishing until I return home to the US.  The EU claims extraterritorial jurisdiction, but I suspect they would have difficulty enforcing any penalty in a US court.

It's hard to say when the next shoe will drop.  Perhaps flickr will ban street photography in fear of the new requirements.  At this point, I would not indicate the location of any shot taken in Europe.  What happens if I have an image published years ago and I add it to a new group on flickr?  I suppose that's processing.  It all boils down to whether the image is biometric data because the new rules are not based on a reasonable expectation of privacy. 

Either that, or I just stay away from Europe and Quebec.
Title: Re: Street Photography in the EU
Post by: Eric Borgström on May 14, 2018, 18:04:46
Wise decision.[/font]
Title: Re: Street Photography in the EU
Post by: Airy on May 14, 2018, 18:27:45
Ron, the kind of shots you routinely publish (and which I like, no doubt) are, I understand, taken in the US. It is not the kind one could easily shoot in France. It is not primarily a matter of legislation (that restricts publication), but the shooting itself would be perceived as offensive.

I have no problems shooting photos in demonstrations where I usually mix with the crowd [restriction: I'd only shoot far right activists at a safe distance and using a tele]. However, I'd fear the reactions if I were shooting isolated ladies passing by.
Title: Re: Street Photography in the EU
Post by: Fons Baerken on May 14, 2018, 18:53:11
Ron, the kind of shots you routinely publish (and which I like, no doubt) are, I understand, taken in the US. It is not the kind one could easily shoot in France. It is not primarily a matter of legislation (that restricts publication), but the shooting itself would be perceived as offensive.

I have no problems shooting photos in demonstrations where I usually mix with the crowd [restriction: I'd only shoot far right activists at a safe distance and using a tele]. However, I'd fear the reactions if I were shooting isolated ladies passing by.

Airy your statement is political! Far right as opposed to far left( EU under sharia)?
Besides American girls dream of Hollywood, thats why they love their picture taken.
Title: Re: Street Photography in the EU
Post by: Airy on May 14, 2018, 19:12:07
My statement is based on observation and experience. Shooting demonstrating CGT and CNT activists is easy; I published some shots here. They do not exactly take the pose, but I have yet to experience a negative reaction. Guys (there are no gals) from the other side most often hide their faces (sunglasses, scarves...), clearly meaning that they are not going to appreciate pics being taken. Ms. Le Pen's meek friends are known to break cameras, so when bumping into Génération Identitaire I take all the more precautions.

I do not know where to position, on the political spectrum, the ultras of PSV Eindhoven when marching in rank and file with military boots by the dozens. Met them once in Lille, they were not masked but fully drunk (strondkrimineelzat in Brusseleer), and even the police would avoid confronting them. I'm not a fool.

And anyway, the comparison is skewed since there is not much far left left [this is not a typo ;)], May 68 is a thing of the past.
Title: Re: Street Photography in the EU
Post by: Ilkka Nissilä on May 15, 2018, 00:00:11

Even when the ECHR does issue a decision, the law in a member state does not automatically change. To take one example, Wikimedia says that Greece does not require consent to take or publish photographs, but in 2009 that law was found inconsistent with Article 8 in the case of Reklos & Davourlis v Greece.  The Greek parliament ought to have amended Greek law, if necessary, to take account of that ruling, and even if they don't, the next time such a case arises in Greece the courts ought to apply the law as set out in the ECHR decision, but there is no way to force them to do either except for the ECHR to keep finding against them on appeal.

The case included (1) children (which are given special protection), (2) a hospital (which I would think should enjoy similar protections to being in one's home), (3) an attempt at commercial photography taking advantage of the child's condition. It would seem a gross violation of the child's (and family's) rights by any measure. That doesn't mean that any (adult) person should be asked permission to take photograph of (in a public place). It might be the French interpretation but it's not widely regarded so in most European countries.

The kind of "force our viewpoint on others" attitude is probably a big reason why the UK people decided that they should leave the European Union. They don't want the French interpret law for them. Other countries may follow if the attitude continues.

The Rowling case is where (1) again a child or children are involved, (2) there is a case where the children are particularly vulnerable to the (rather ravenous) UK press because of their mother's celebrity status. It would seem a common sense ruling.
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 15, 2018, 16:17:33
I don't shoot exclusively in the US, but I avoid countries with restrictions, or do shots were the person is not recognizable.  Women rarely react and they keep their distance.  The problem area is men who are unacquainted with the subject or don't know the subject well.  I get harassed occasionally.  In the US it's a felony to injure a person my age.  The problem is I look much younger than I am.
Title: Re: Street Photography in the EU
Post by: Les Olson on May 15, 2018, 18:03:01
The case included (1) children (which are given special protection), (2) a hospital (which I would think should enjoy similar protections to being in one's home), (3) an attempt at commercial photography taking advantage of the child's condition. It would seem a gross violation of the child's (and family's) rights by any measure. That doesn't mean that any (adult) person should be asked permission to take photograph of (in a public place). It might be the French interpretation but it's not widely regarded so in most European countries.

Did you read the judgment? It is at https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-90617%22]} 

The photographs were commercial only in so far as the photographer planned to sell them to the parents, which the Greek government argued meant there was no infringement of privacy: "The Government moreover contested the applicability of Article 8 in the present case, arguing that since the offending photographs had not been published the “private life” of the applicants’ son was not at issue. [T]he Government alleged that the photographer’s intention was solely to sell the photographs of the new-born baby to its parents, without releasing them to the general public. In the present case there had thus been no commercial exploitation of the baby’s image. The Government concluded that, in these circumstances, there had been no interference with the applicants’ son’s right to respect for his private life."

The fact that the photographs were taken in a hospital was held to be significant only in demonstrating conclusively that the subject "did not knowingly or accidentally lay himself open to the possibility of having his photograph taken in the context of an activity that was likely to be recorded or reported in a public manner", and the fact that he was an infant was significant only in showing beyond question that he, "not being a public or newsworthy figure, did not fall within a category which in certain circumstances may justify, on public-interest grounds, the recording of a person’s image without his knowledge or consent".  Photographs taken in hospital might be supposed to be inherently sensitive, but the court found that was not a  factor: "the photographs simply showed a face-on portrait of the baby and did not show the applicants’ son in a state that could be regarded as degrading, or in general as capable of infringing his personality rights. However, the key issue in the present case is not the nature, harmless or otherwise, of the applicants’ son’s representation on the offending photographs, but the fact that the photographer kept them without the applicants’ consent."

The importance of this case is that it was the first case to come to the ECHR that dealt with photographs that had not been published: "The Court must therefore ascertain whether, although the offending images were not published, there was nevertheless interference with the applicants’ son’s right to the protection of his private life. For that purpose it is necessary to examine the substance of the right to the protection of one’s image, especially as in previous cases the Court has dealt with issues specifically involving the publication of photographs".  The court took the opportunity to state the law clearly, in a way that did not depend on the photographs being of a child or being taken in hospital:  "A person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one’s image is thus one of the essential components of personal development and presupposes the right to control the use of that image. Whilst in most cases the right to control such use involves the possibility for an individual to refuse publication of his or her image, it also covers the individual’s right to object to the recording, conservation and reproduction of the image by another person. As a person’s image is one of the characteristics attached to his or her personality, its effective protection presupposes, in principle and in circumstances such as those of the present case, obtaining the consent of the person concerned at the time the picture is taken and not simply if and when it is published".   

That is the law in every country in the EU - although in some countries it may be necessary to go all the way to the ECHR to get a decision consistent with the law.

It is one of the great puzzles of life that the English should be so indignant about being dictated to by foreigners, but also indignant about foreigners objecting to being dictated to by them.
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 15, 2018, 18:22:11
Les, I appreciate all your research, but I also get the feeling you believe in your heart that privacy trumps freedom of speech, and the US, UK  and I are out of line with the rest of the civilized world on that point.

Regarding hospitals, in the US there is the HIPPA law which protects the privacy of patients.  A photo of someone in, entering or leaving a hospital is viewed by the hospitals as a violation of HIPPA.  However, this is enforced on a property basis.  In other words, keep shooting after being warned, and you get busted for trespassing.

I continue to puzzle over how the law turns on what constitutes biometric information.  An Illinois statute defines biometric information to include things like fingerprints, retinal scans and the like.  It specifically excludes photographs.  The exclusion may be a conscious effort to avoid first amendment problems, but it also highlights that ordinary photos of people are not usually thought of as biometric information.

There is a saying that hard facts make bad law.  Photographing an infant in a hospital without the parents' permission is bad business.  I think, especially in a civil law system, that it is not possible to extend this result beyond its facts.  Even in the US, this would get you into trouble because of HIPPA.  My view is the authorities were applying a higher standard because it was an infant and in a hospital.

Anyway, I am happy to know that it is relatively safe to vacation in Greece.
Title: Re: Street Photography in the EU
Post by: Les Olson on May 15, 2018, 21:03:47
I also get the feeling you believe in your heart that privacy trumps freedom of speech, and the US, UK  and I are out of line with the rest of the civilized world on that point.

Well, you think freedom of speech trumps privacy.  I, on the other hand, do not think that privacy trumps freedom of speech.  I think that freedom of speech has to be balanced against privacy.  I think that the US courts have got the balance wrong, by setting the bar on what counts as protected speech too low, so that people's privacy can be trashed to avoid interfering with even the most trivial and ephemeral, or odious "speech" - eg, up-skirting women. 

As far as the UK is concerned, you need to think about this in the context of the UK's historical contempt for freedom of speech by the lower or ill-disciplined orders. For example, it is as of right now the law in Great Britain that "If any person whatsoever shall, within the United Kingdom or without - [emphasis added] compass, imagine, invent, devise, or intend to deprive or depose our Most Gracious Lady the Queen, from the style, honour, or royal name of the imperial crown of the United Kingdom, or of any other of her Majesty’s dominions and countries, [...] and such compassings, imaginations, inventions, devices, or intentions, or any of them, shall express, utter, or declare, by publishing any printing or writing or by any overt act or deed, every person so offending shall be guilty of felony, and being convicted thereof shall be liable to be transported beyond the seas for the term or his or her natural life" (Treason Felony Act, 1848, http://www.legislation.gov.uk/ukpga/Vict/11-12/12 - except that transportation was abolished in 1868, so the penalty is, by default, life imprisonment).  That is, it is a crime to advocate a republic in Australia, let alone in Britain.  Now, since 1998 and the Human Rights Act, no one can be prosecuted under this law (https://www.theguardian.com/media/2003/jun/27/theguardian.pressandpublishing), but who knows what will happen after Brexit?
Title: Re: Street Photography in the EU
Post by: BEZ on May 15, 2018, 21:42:22
It is one of the great puzzles of life that the English should be so indignant about being dictated to by foreigners, but also indignant about foreigners objecting to being dictated to by them.

It is not puzzling but perfectly logical to me.
Title: Re: Street Photography in the EU
Post by: Ilkka Nissilä on May 15, 2018, 23:04:40
Did you read the judgment? It is at https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-90617%22]} 

I'm not a lawyer so I can only look at it from the perspective of a layman. What I do know is that the law and courts exist in the service of justice and justice is often subjective and dependent on the case's particular details. It's not something that a robot could do, be a judge, nor would I want to live in such a society.

Quote
The fact that the photographs were taken in a hospital was held to be significant only in demonstrating conclusively that the subject "did not knowingly or accidentally lay himself open to the possibility of having his photograph taken in the context of an activity that was likely to be recorded or reported in a public manner"

This doesn't mean a different ruling would not have been made in case the events had taken place of an adult subject on a public street (where the expectation of being recorded is the norm, just look at how many security cameras are recording everything that is happening in many public places). I am pretty sure the subject has no right to be erased from a security tape because consent for the recording was not explicitly given.

The scales that symbolize court are a symbol which indicate that the different sides of the case are judged according to the arguments made.  Depending on the case's circumstances the rulings may vary.

Quote
That is the law in every country in the EU - although in some countries it may be necessary to go all the way to the ECHR to get a decision consistent with the law.

It is quite clear that when the carrying out of justice in courts goes against the common feeling of justice among the people then such institutions should be abolished.

Law is not some absolute, it is a set of rules set by the elected representatives of the people, and it can be changed at any time, as can the representatives themselves.

Quote
It is one of the great puzzles of life that the English should be so indignant about being dictated to by foreigners, but also indignant about foreigners objecting to being dictated to by them.

Sometimes it's easier to accept what is than try to change how other people feel.
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 15, 2018, 23:46:23
Well, you think freedom of speech trumps privacy.  I, on the other hand, do not think that privacy trumps freedom of speech.  I think that freedom of speech has to be balanced against privacy.  I think that the US courts have got the balance wrong, by setting the bar on what counts as protected speech too low

Well, I am an American and a lawyer who studied constitutional law along the way.  You are French, it appears from your profile.  That explains the difference.  Also, there is a major difference in how we view privacy in the US.  France was at the forefront of regulating street photography.  Perhaps there were to many tourists running around with cameras.

I don't know if you are a lawyer, but you sure do have a knack for navigating EU law.  I do think you put too much reliance on individual cases standing for very broad general propositions.  That's a matter of style, I suppose.  As a lawyer I know there are two sides to every argument.  That's why we have courts.

There are many limitations on the freedom of speech under our civil law.  The bar is high only in criminal cases.  Some states are now taking the approach of making it easy to sue in civil courts in situations where there is an obvious misuse of a photograph like revenge porn.

You can feel safe that there is no chance I will ever move to the EU.  I feel safe that I can do street photography outside the EU.  They tried to get rid of it in Texas, but it didn't work.  Texas enacted a more restrictive version of the now defunct Improper Photography law.  Most Texas criminal lawyers think it is also unconstitutional.
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 15, 2018, 23:56:19
My conclusion is the document I linked to at the start of this thread is the interpretation of a government agency of Malta.  It is most likely an interpretation any EU state could use although it is extremely hard line in it's classification of ordinary photographs as biometric data.  I suspect some other EU states will have a different view.

I find it hard to reach the conclusion that an ordinary photograph of a person with no other identifying information is biometric data.  Biometric data is unique.  There is such a thing as a look alike.  I actually found a photo of someone here in Houston who resembled me from the angle it was taken.
Title: Re: Street Photography in the EU
Post by: Ilkka Nissilä on May 16, 2018, 00:03:01
The court also mentions "The management of the clinic I. did not, however, seek the applicants’ consent and even allowed the photographer to enter the sterile unit, access to which was restricted to the clinic’s doctors and nurses, in order to take the pictures in question." Clearly a part of the reason for the ruling was that the clinic should not have allowed the photographer into the sterile premises otherwise it would not have been written out in the decision. The text is so long and includes many considerations not just that the subject (or parents since the baby was a minor) didn't give consent.

The decision even mentions "the right to personal development" as part of the protection of private life. I can't help but think that this refers to the child's vulnerability in the hospital at one day old and the interference of the  photographer's presence in the ward on the child's development.

The decision also includes passages of domestic law as relevant, such as "Any person who intentionally causes damage to another person by acting contrary to moral standards shall make reparation for such damage”. Moral standards? This is clearly a subjective matter, what are the applicable moral standards. However, I completely agree in this case the moral standards had been violated. I don't think it is safe for unauthorized and medically untrained
persons such as a photographer to enter the sterile space where the baby was being cared for. IMO this is clealy commercial use as the intention was to sell the photographs to the parents. Not artistic use.

The Greek government argued "the Government alleged that the photographer’s intention was solely to sell the photographs of the new-born baby to its parents, without releasing them to the general public. In the present case there had thus been no commercial exploitation of the baby’s image." I don't think the definition of commercial use is clear but the government seemed to argue if it is not published it was not commercially used. In my opinion if the photograph is made for the purpose of being sold (in this case to the parents) then it is commercial use. If it is made just to be enjoyed rather than to make money, then it is artistic use. I think there is a blurry line around the meaning of the term "commercial use".
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 16, 2018, 00:35:35
Ikka, my take is the Greek baby picture case is limited to it's facts, that being the subject was a helpless person in a medical facility.  I have noticed Les tends to view such rulings in the broadest possible sense, but he is an advocate of total privacy at the expense of freedom of expression.  That photographer had bad judgment and so did the facility for letting him in.

It's going to take a while to see if this changes anything.  The view in Malta is on privacy end of the spectrum.  However, there are some Quebec court decisions which took an extremely narrow view of their journalism exception.

It still goes back to what is biometric data?  While the objective is privacy this is totally unlike US law where we have a "reasonable expectation of privacy standard". 
Title: Re: Street Photography in the EU
Post by: Airy on May 16, 2018, 06:56:55
My conclusion is the document I linked to at the start of this thread is the interpretation of a government agency of Malta.  It is most likely an interpretation any EU state could use although it is extremely hard line in it's classification of ordinary photographs as biometric data.  I suspect some other EU states will have a different view.

I find it hard to reach the conclusion that an ordinary photograph of a person with no other identifying information is biometric data.  Biometric data is unique.  There is such a thing as a look alike.  I actually found a photo of someone here in Houston who resembled me from the angle it was taken.

Ordinary passports with a standard photograph are not considered to be "biometric" passports in France. The so-called biometric stuff (incl. but not limited to fingerprints) is on a chip included in "biometric" passports. So, if words have a meaning, an ordinary pic taken on the street could not possibly be called "biometric data".

But the border is fuzzy. If I capture your portrait with a high res camera, maybe I'll get enough resolution on the iris that could fool an iris-recognition device. Or if it is a simple face shot, I might be able to unlock your computer if you are using face recognition. Of course the crime consists in breaking into your computer, using whatever means. In the present general context, I'm afraid that taking a picture of your face may be considered preparation to crime, and may itself be criminalized.

If so, I suggest banning knife sales. Why do you need knives anyway - eat hamburgers.
Title: Re: Street Photography in the EU
Post by: Les Olson on May 16, 2018, 08:25:41
I'm afraid that taking a picture of your face may be considered preparation to crime, and may itself be criminalized.

The Terrorism Act, 2000, s58a, does exactly that in the UK in relation to photographs of any police officer or member of the armed forces.  "Reasonable suspicion" is required for the police to actually arrest you for photographing police, but "[t]here is nothing preventing officers asking questions of an individual who appears to be taking photographs of someone who is or has been a member of Her Majesty’s Forces (HMF), Intelligence Services or a constable" (https://www.met.police.uk/advice-and-information/photography-advice/).  Under s43 of the Act police have the power to stop and search anyone, including examining the images on their camera or phone, in order to decide whether they are intended to assist terrorism. 
Title: Re: Street Photography in the EU
Post by: Les Olson on May 16, 2018, 10:56:00
Well, I am an American and a lawyer who studied constitutional law along the way.  You are French, it appears from your profile.  That explains the difference.  Also, there is a major difference in how we view privacy in the US.  France was at the forefront of regulating street photography.  Perhaps there were to many tourists running around with cameras.

I don't know if you are a lawyer, but you sure do have a knack for navigating EU law.  I do think you put too much reliance on individual cases standing for very broad general propositions.  That's a matter of style, I suppose.  As a lawyer I know there are two sides to every argument.  That's why we have courts.

There are many limitations on the freedom of speech under our civil law.  The bar is high only in criminal cases.  Some states are now taking the approach of making it easy to sue in civil courts in situations where there is an obvious misuse of a photograph like revenge porn.

When I was working one of my main hobbies was formal education, so over the years I studied a lot of things, including law, but I am not a lawyer because that would have required sitting through courses in things like conveyancing that I had no interest in (my other main hobby was travel, and when I retired I could not afford two expensive hobbies so I replaced education with photography, as being a natural match with travel).  I live in France but I am not French, as my neighbours would assure you.

The whole point of a precedent system is that individual cases do stand for general principles.  It is true that in the common law tradition the principles do not exist independently of the cases, and lawyers are trained to be wary of principles because court decisions often hinge on small details that are held to distinguish a case from the precedents. In Civil Code countries like France general principles do exist independently of the cases and principles are given much more weight in court decisions.  One of the tensions in EU law and practice is between institutions, like the ECHR, that are based on free-standing principles ("Everyone has the right to respect for his private and family life, his home and his correspondence") and countries where the legal tradition is suspicious of principle.

As with the UK, it is easy to exaggerate the strength of the free speech tradition in the US.  It is certainly untrue that the criminal law in the US is restricted by the 1st Amendment - on the contrary, the US has criminalised political speech consistently, from the Sedition Act of 1798, via the Espionage Act of 1917, the Smith Act, the Taft-Hartley Act, right down to the Patriot Act.
Title: Re: Street Photography in the EU
Post by: Anthony on May 16, 2018, 13:34:41
The Terrorism Act, 2000, s58a, does exactly that in the UK in relation to photographs of any police officer or member of the armed forces.  "Reasonable suspicion" is required for the police to actually arrest you for photographing police, but "[t]here is nothing preventing officers asking questions of an individual who appears to be taking photographs of someone who is or has been a member of Her Majesty’s Forces (HMF), Intelligence Services or a constable" (https://www.met.police.uk/advice-and-information/photography-advice/).  Under s43 of the Act police have the power to stop and search anyone, including examining the images on their camera or phone, in order to decide whether they are intended to assist terrorism.
The guidance makes it clear that under s58a the police have to have a reasonable suspicion that the photograph was, by its very nature, designed to provide practical assistance to a terrorist.

The police can ask questions, but the photographer does not have to answer them.  Personally, I would always try to give helpful answers.

Similarly, s43 requires the police to have a reasonable suspicion that the person is a terrorist.

The police cannot use these powers against "anyone".   The requirement for reasonable suspicion is real, and if the police cannot establish this then they are in breach of the law.
Title: Re: Street Photography in the EU
Post by: Ilkka Nissilä on May 16, 2018, 14:06:18
My experience visiting the UK is that the police are quick to pose if they realize they are going to be photographed. I don't recall any instance where my photography activities had been questioned by the police in London. In some instances I've been asked to move back for security reasons (I've been photographing some event and they wanted to clear the way for cars). Anyway London is perhaps a destination more tourist friendly than many others and the people there recognize the importance of tourism for bringing in money from abroad. It will be interesting to see what Brexit does to this, whatever form its implementation will take.

By contrast in the USA I have been questioned for photographing various things (patrols have stopped to ask what I was doing and made notes). I think Americans took the threat of terrorism quite seriously and the police are more quick to act rather just monitor and follow.  It is very unusual that regular people on the street would protest against taking their photograph, in fact I find it more common that they start posing, which is a little annoying when you're trying to do candids. I oblige the posed shots and they seem to be happy. I have gotten frowns as well on a regular basis but my feeling that they're getting to be less common (people seem to be more open to be photographed). In case of a frown I usually don't continue. Of course I cannot say how it works in other locations I haven't visited but I do believe the ubiquitous camera phone has made photography more accepted. Of course, the photographer's behavior influences the reactions greatly.
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 16, 2018, 14:21:58
I did not say criminal law in the US was unrestricted by the first amendment.  I said "the bar was high".  You can't yell "fire" in a crowded theater.

Photographing police in Texas is legal, but risky because they can arrest you and let you go later with little worry that they will be sanctioned.  The situation varies by state.  In some states people have been prosecuted for filming police under wiretap statutes because sound was recorded.  Their defense is an official act is outside the wiretap laws.  Again, it's iffy because who needs the problem.

In law, words have the meaning legislation gives them.  Plain old photographs were not biometric data until that Malta agency said so.  That will likely be the result in France.

Les, those courses in conveyancing and the like have more importance than you may suspect.
Title: Re: Street Photography in the EU
Post by: Les Olson on May 16, 2018, 21:27:34
The requirement for reasonable suspicion is real, and if the police cannot establish this then they are in breach of the law.

Yes, although the "reasonable suspicion" required for an arrest in the UK law is a much lower standard than the "probable cause" required in the US.  And if the police decide to arrest you, you cannot resist arrest on the grounds that you think they do not have the required reasonable suspicion, so you still get arrested.  You can then be held for 24 hours, under conditions which are unlikely to be pleasant, before they have to charge you or let you go.  Of course, if the police did not have reasonable suspicion, the arrest and any subsequent detention were unlawful, but there is no crime of unlawful arrest: it is a civil wrong and your only recourse is to sue the police.  So the requirement for reasonable suspicion is not much of a protection, in practice, if you are, to put it delicately, the kind of person likely to arouse the unreasonable suspicion of the police. 

The Terrorism Act, 2000 was originally passed with the now notorious s44, which allowed the police to define areas where they could stop and search without reasonable suspicion, and seize "articles of a kind that could be used in connection with terrorism" - ie, anything whatever.  Several security laws applied to Northern Ireland also allowed the police to arrest anyone they suspected - not reasonably suspected - of terrorism. 

The fact that those laws are no longer in effect is beside the point: they were passed, and similar laws can and will be passed again if they suit the convenience of government.  The point is simply that the idea that freedom, and in particular freedom of speech, is deeply entrenched in the UK and US is false. 
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 16, 2018, 21:47:03

The fact that those laws are no longer in effect is beside the point: they were passed, and similar laws can and will be passed again if they suit the convenience of government.  The point is simply that the idea that freedom, and in particular freedom of speech, is deeply entrenched in the UK and US is false.

You are entitled to your opinion, however wrong it may be.  Your reasoning is like saying that because the US had slavery 150 years ago, we could have it again by this evening.  It doesn't work that way.  Times change and the law develops.
Title: Re: Street Photography in the EU
Post by: Les Olson on May 16, 2018, 21:51:56
I did not say criminal law in the US was unrestricted by the first amendment.  I said "the bar was high".  You can't yell "fire" in a crowded theater.

Well, yes, you can - if there is a fire. The actual wording is "The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic", from Oliver Wendell Holmes judgement in the 1919 case of Schenk v United States.  Schenk was convicted of violating the Espionage Act of 1917, because he had distributed flyers opposing the draft.  Holmes' analogy is fatuous: Schenk had not done anything even vaguely analogous to falsely shouting fire in a crowded theatre.
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 16, 2018, 22:57:46
Well, yes, you can - if there is a fire. The actual wording is "The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic", from Oliver Wendell Holmes judgement in the 1919 case of Schenk v United States.  Schenk was convicted of violating the Espionage Act of 1917, because he had distributed flyers opposing the draft.  Holmes' analogy is fatuous: Schenk had not done anything even vaguely analogous to falsely shouting fire in a crowded theatre.

That's another fact situation which would produce a different result today.
Title: Re: Street Photography in the EU
Post by: Anthony on May 17, 2018, 00:25:38
Yes, although the "reasonable suspicion" required for an arrest in the UK law is a much lower standard than the "probable cause" required in the US.  And if the police decide to arrest you, you cannot resist arrest on the grounds that you think they do not have the required reasonable suspicion, so you still get arrested.  You can then be held for 24 hours, under conditions which are unlikely to be pleasant, before they have to charge you or let you go.  Of course, if the police did not have reasonable suspicion, the arrest and any subsequent detention were unlawful, but there is no crime of unlawful arrest: it is a civil wrong and your only recourse is to sue the police.  So the requirement for reasonable suspicion is not much of a protection, in practice, if you are, to put it delicately, the kind of person likely to arouse the unreasonable suspicion of the police. 

The Terrorism Act, 2000 was originally passed with the now notorious s44, which allowed the police to define areas where they could stop and search without reasonable suspicion, and seize "articles of a kind that could be used in connection with terrorism" - ie, anything whatever.  Several security laws applied to Northern Ireland also allowed the police to arrest anyone they suspected - not reasonably suspected - of terrorism. 

The fact that those laws are no longer in effect is beside the point: they were passed, and similar laws can and will be passed again if they suit the convenience of government.  The point is simply that the idea that freedom, and in particular freedom of speech, is deeply entrenched in the UK and US is false.

The "reasonable belief" concept is long established in the case of arrest of all kinds, not just terrorism, and is highly effective as a protection.

Of course, sometimes the police do breach this standard, and the result is often that they have to pay substantial sums of compensation.  There are lots of law firms which love to take on such cases on a no win no fee basis.

Even in the case of terrorism in Northern Ireland, there has to be a reasonable suspicion. 

Sure, laws can be changed, but what we are talking about is the current law and the impact of the new data protection regulations. 
Title: Re: Street Photography in the EU
Post by: Les Olson on May 18, 2018, 16:46:46
The point I want to make is simply that the claim that the restrictions placed by EU law on photography in public are repugnant to the tradition of respect for free speech in the US and UK are wrong, because there is no such tradition. 

It has always been the law in England that you can express whatever opinion you like, but it has never been the law that you could not be prosecuted for it.  It was a crime in the common law to anything that tended to cause a breach of the peace: "Besides actual breaches of the peace, anything that tends to provoke or excite others to break it, is an offense of the same denomination. Therefore challenges to fight, either by word or letter, or to be the bearer of such challenge, are punishable by fine and imprisonment".  By the same reasoning, the crime of sedition (in the case of speech) or seditious libel (in the case of printed matter) was committed by anyone who said or wrote anything critical of the government or its laws or the established political and social order that tended to cause a breach of the peace, and truth was not a defence; "Every freeman has an undoubted right to lay what sentiments the pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity [...] to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion (Blackstone, Commentaries, Book 4, Chapter 11, s12-13).  The common law crimes of sedition and seditious libel were abolished in 2009, but it is still a crime if a foreigner does anything "likely to cause sedition or disaffection [...] amongst the civilian population"; emphasis added - note that no intent is required for conviction (https://www.legislation.gov.uk/ukpga/Geo5/9-10/92).

Restricting street photography along the lines of French law because offensive street photography tends to promote breaches of the peace would be perfectly consistent with the common law tradition.  The irony is that the only thing that stops that happening is Britain's EU membership, because there is no guarantee of freedom of speech in UK law other than Article 11, which entered UK law with the Human Rights Act, just like Article 8 and EU privacy law. 

Contrary to the popular myth about free speech in the US, the law in the US is exactly as Blackstone stated it for England: the 1st Amendment serves "to prevent all such 'previous restraints' upon publications as had been practiced by other governments, but not to prevent the subsequent punishment of such as may be deemed contrary to the public welfare", as the USSC said in 1907 (https://supreme.justia.com/cases/federal/us/205/454/case.html). Before 1969, the USSC repeatedly held that it was not a breach of the 1st Amendment to criminalise "utterances inimical to the public welfare, tending to incite crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow" as the USSC put it in Whitney v California in 1927.  It is often said that the USSC's rule was that words were criminal only if they were such as "to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent", but that never meant that the speech had to advocate illegal conduct, or that there had to be any actual danger of the substantive evils being brought about, only that the speech had to be intended to lead to something that would be a clear and present danger if it came about (https://supreme.justia.com/cases/federal/us/249/47/case.html). In 1969, the USSC changed this standard so as to legalise "advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" (https://supreme.justia.com/cases/federal/us/395/444/case.html).  However, in a number of subsequent decisions the USSC has drifted back to the "bad tendency" principle: eg, upholding in 1984 Reagan's decision to block travel to Cuba, so as to "curtail, by restricting travel, the flow of hard currency to Cuba that could be used in support of Cuban adventurism" [emphasis added] (https://supreme.justia.com/cases/federal/us/468/222/), and in 2010 upholding the USA Patriot Act making it a crime to give expert advice to a designated terrorist organisation in support of its non-terrorist activities, because "For example, the Republic of Turkey—a fellow member of NATO—is defending itself against a violent insurgency waged by the PKK. [...] That nation and our other allies would react sharply to Americans furnishing material support to foreign groups like the PKK, and would hardly be mollified by the explanation that the support was meant only to further those groups’ “legitimate” activities." 

The difference between punishing speech that is contrary to the public welfare, or that which creates a clear and present danger, or that which incites imminent lawless action, or that which annoys foreigners we want to keep sweet, is only in the standard that must be met to find speech criminal, not in the principle, which US law took over from the common law and has never questioned, that speech can legitimately be made a crime. 
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 18, 2018, 19:29:18
The point I want to make is simply that the claim that the restrictions placed by EU law on photography in public are repugnant to the tradition of respect for free speech in the US and UK are wrong, because there is no such tradition. 


Restricting street photography along the lines of French law because offensive street photography tends to promote breaches of the peace would be perfectly consistent with the common law tradition.  The irony is that the only thing that stops that happening is Britain's EU membership, because there is no guarantee of freedom of speech in UK law other than Article 11, which entered UK law with the Human Rights Act, just like Article 8 and EU privacy law. 



You don't know what you are talking about.  You are prejudiced against street photography because you believe in an extended concept of privacy.  Several years ago I posted 4 photos of women I took in Zurich.  At the time very few people were doing this.  Some guy from New Jersey, K9, launched a major attack on me and street photography.  He did this in several other photo forums.  It turned out he frequented a nude beach in NJ and did not want his ass photographed.  Street photography may be going away in most of the EU, but it will be around everywhere else.

Your arguments are eloquent, but unsound.   I don't have the time to address them one by one, but the reader should be warned that you are not a lawyer.

I believe the interpretation in the Malta document is extreme.  It stretches the definition of biometric data way beyond what it was ever meant to be.  Paradoxically, it carves out a wide exception for surveillance video which captures much more biometric data.  The GDPR will eventually hurt Europe.  A great wall is being built to keep the EU out because nobody wants to deal with it.  Other providers will attempt to profit from this but Europeans will pay more and get less.  It's just an extension of what is already happening with money going down the drain in Brussels.

Title: Re: Street Photography in the EU
Post by: Les Olson on May 21, 2018, 09:31:47
You are prejudiced against street photography because you believe in an extended concept of privacy.  Several years ago I posted 4 photos of women I took in Zurich.  At the time very few people were doing this.  Some guy from New Jersey, K9, launched a major attack on me and street photography.  He did this in several other photo forums.  It turned out he frequented a nude beach in NJ and did not want his ass photographed.  Street photography may be going away in most of the EU, but it will be around everywhere else.

Whether I, or even you, think there ought to be restrictions on photographing people in public in the interests of their privacy is beside the point. In every country where opinion has been sampled there is a very large majority in favour of making up-skirting a crime. A large majority also thinks it is problem that the law should address that photographs taken without the consent of the person photographed can be published on the internet in ways that are offensive or demeaning, especially when the photographs are of children.  As a result, changes in the law are being made or actively considered in many countries.

Various legal tools can be used to achieve the results most people want to see.  Eg, up-skirting can be treated as a sexual offence, and has been in many countries - Scotland, eg (https://www.legislation.gov.uk/asp/2009/9/section/9) - and the Netherlands has used copyright law to address an offensive use, in the form of a trade in images of children taken at nude beaches.  These approaches are unsatisfactory because they leave gaps: a very large majority think it should be illegal to take photographs of children for sexual purposes, treating up-skirting as a sexual offence is unsatisfactory because criminalising sexual preference is wrong, and offensive but non-sexual use of images is not addressed. Plus, in the US, attempts to make up-skirting a crime have failed - although that is at least partly, as in Texas, because of inept legal drafting. 

This is where EU privacy law comes in: it is a very attractive alternative tool.  It covers all the bases, is transparently based on universally accepted principles, is clearly stated and easy to apply, and has not resulted in the collapse of investigative journalism or the death of creative photography. For that reason, whenever the problems that a majority of people think must be addressed are discussed, EU privacy law comes up as a possible model.  In most countries, only a minority of people think the law ought to require the consent of adults photographed in public, but that does not mean the rest think it ought not: most of them think that if that is what is needed to make seriously offensive photography illegal, c'est la vie.

Your preferred option, no change, is not a realistic option, even in the US.  If photographers regard EU privacy law as too restrictive, they had better suggest alternative but similarly effective and practical ways to reach the non-negotiable outcomes of preventing up-skirting and other forms of photographic harassment of women and of suppressing exploitation of images of children.   
Title: Re: Street Photography in the EU
Post by: Ilkka Nissilä on May 21, 2018, 12:53:21
Quote
In most countries, only a minority of people think the law ought to require the consent of adults photographed in public, but that does not mean they think it ought not: they think that if that is what is needed to make seriously offensive photography illegal, c'est la vie.

I doubt that very much. Photography which is made in such a way that it reveals private parts of the photographed person (or attempts to do so) is illegal in my country (nothing to do with the EU), in public places of unconsenting subjects and this doesn't require restricting the taking of images of the usual kind of street photography which only shows the subjects from the angles which passers-by see as they walk the street, often showing multiple people interacting in a street surround. Since the plainly visible view of people on the street is photographed all the time by millions of people, there is a very good reason not to make this illegal simply because it would be like making rain or breathing illegal. If you do it then this affects most people with a mobile phone, and certainly most tourists. I believe the majority of images made on the street intend to document life as it happens for personal record and memory. If you don't think this is valuable and you only think that posed, "Say Cheese!" artifice should suffice for the purposes of historical record of time then you probably have the right to say so but that doesn't mean others will have the same mindset. Photography has real value in forming the historical record and it's essential that not all of it is made-up. Some degree of posing is generally activated conciously or subconciously in the subject when consent is requested.  Thus the value of the photograph as historical record of how things really were is dependent on the ability to take non-posed, candid photographs.

Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 21, 2018, 15:04:42
Looking through the GDPR it appears to allow for street photography if a member nation wants it to.

"Art 9

1. Processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation shall be prohibited."

The above would at first glance appear to prohibit ordinary photography.


"Art 9

2. Paragraph 1 shall not apply if one of the following applies:

 e. processing relates to personal data which are manifestly made public by the data subject;"

By appearing in public some things like one's race and other details are manifestly made public.  If the subject is wearing a trade union shirt or walking a picket line, that membership is manifestly public.  If the subject is holding hands with someone their sexual orientation is manifestly made public.  Perhaps high resolution portraits might reveal a retinal scan, but not street photography.  It seems this could be interpreted to mean there is no privacy in a public place.  I am also unsure if there is some other part of the regulation which would apply when Art 9 does not.  At this point I believe the Malta interpretation is a stretch which incorrectly defines biometric data and "manifestly public".  However, there doesn't seem much to prevent taking this interpretation and the EU lacks general principles of freedom of speech found in the US, such as a chill.  If you don't know it, a chill is uncertainty of prosecution which undermines one's willingness to use their freedom of speech.

The definition of personal data in the GDPR does not include the word "photograph".  However the definition of "biometric data"  does include "facial images" but also says they are the result of "specific technical processing."

"‘biometric data’ means personal data resulting from specific technical processing relating to the physical, physiological or behavioural characteristics of a natural person, which allow or confirm the unique identification of that natural person, such as facial images or dactyloscopic data;"

That doesn't sound like ordinary photographs.

Furthermore there is article 85:

"Member States shall by law reconcile the right to the protection of personal data pursuant to this Regulation with the right to freedom of expression and information, including processing for journalistic purposes and the purposes of academic, artistic or literary expression."

However, I would not put too much faith in an artistic exception as it is all to easy to say it's OK to make prints to hang at an exhibition, but everything else is prohibited.

As I mentioned before, I consider it likely the US will provide it's citizens and residents protection from fines assessed under the GDPR eventually.  This is the case with foreign libel judgments.  It became a common scam for libel actions to be brought in England where the rules heavily favor the plaintiff and later try to enforce the monetary award in the US.  Eventually a statute was enacted to require a new trial in the US.  I can envision some French national being photographed in the US and the image published on the internet via a US based server going after the US photographer in Europe claiming extraterritorial application of the GDPR.  This will provide the perfect excuse for US courts to reject the judgment and eventually Congress will act as it did with English liable judgments.  (Do a search for "libel tourism".)  Note foreign actions under copyright are likely to continue to be rejected on the basis that photographs of people are fair use.

I continue to see the GDPR as likely to turn into a complete disaster for the EU.



Title: Re: Street Photography in the EU
Post by: Les Olson on May 21, 2018, 17:40:09
Yes, some countries have made up-skirting a crime, but others have tried and failed and others have not tried.  And the debate has moved on, so that upskirting is seen, not as deviant sexual behaviour, but as part of the spectrum of public harassment of women, none of which is acceptable:

“I don’t think anyone can belittle the impact of someone taking an abusive photograph in this way without consent. There are many instances where women have to deal with behaviour that does not have their consent and this is clearly on the unacceptable end of the spectrum.”  The Women and Equalities Select Committee is considering a new law on upskirting as part of an ongoing inquiry into women’s experience of everyday sexism and sexual harassment in public. [...] A spokesperson for the Ministry of Justice said [evidently unaware that there is no expectation of privacy in a public place]: "This behaviour is a violation of privacy and causes considerable distress for victims." (https://www.independent.co.uk/news/uk/crime/upskirt-photos-law-illegal-criminal-offence-needed-campaigners-statistics-10-girls-children-police-a8218491.html).

Hand-wringing about losing the historical record is misplaced: in the EU photographs of public places in which individuals appear can be freely taken and published without anyone's consent.  Only photographs of people who are recognisable require consent, unless the photographs are for news reporting, artistic creation, or recording of historical events, in which case no consent is required. 

Here is a challenge: name a significant photographer - street or not - whose work would be impossible under current EU law. One that springs to mind is Bruce Gilden, of whom street photographer Joel Meyerowitz has said "He's a fucking bully. I despise the work, I despise the attitude, he's an aggressive bully and all the pictures look alike because he only has one idea – 'I'm gonna embarrass you, I'm going to humiliate you.' I'm sorry, but no." (https://www.theguardian.com/artanddesign/2012/nov/11/joel-meyerowitz-taking-my-time-interview).  Kohei Yoshiyuki would definitely be breaking EU law; Miroslav Tichy, maybe - although at least some of his photographs would be illegal in your country as well.  Any others? 
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 21, 2018, 19:26:14
Les, up skirting is not street photography.  It's very existence isn't justification for outlawing street photography.  The argument is like outlawing Tide detergent because crazy kids are eating it. Using the interpretation given by Malta, street photography would become very difficult.  Photographers could not have a recognizable person in the photo, even if there was not enough there for a machine to do an accurate match.  I now believe the Malta document is outside the four corners of the GDPR.  It doesn't matter in Malta because they can probably do what they will without it.  Calling an ordinary photograph biometric data is a real stretch especially in light of the "special processing" language. Perhaps I am worrying needlessly and nothing has changed.  Countries wanting French style rules will have them without regard to data protection and those favoring freedom of expression, Like Greece, will read the GDPR narrowly and continue to allow it.  I recall originally Spanish photographers were in a panic when the data protection directive was first adopted.  That later died down.

It's too bad you devote your considerable skills to politicking for the abolition of street photography instead of coming up with a better analysis of the GDPR. 

Title: Re: Street Photography in the EU
Post by: Ilkka Nissilä on May 21, 2018, 19:37:02
Well if you can see the face most people who know the person will recognize him or her, even if the face is a fairly small part of the frame (such as in much of the classical street photography some French individuals pioneered). I don't see how you make the distinction of recognizable vs. not in such a way that most street photos wouldn't contain recognizable people (unless from behind, or as a silhouette). Your interpretation of "EU law" does not coincide with the practical application of law in my (EU member) country. Neither it would in Sweden: There was just a Swedish photography magazine Kamera & bild publishing an article on street photography where many of the subjects were clearly recognizable by anyone who knew the individuals beforehand. I am sure they would not have run it if there was any significant risk of legal action from the subjects.

If the face is such a small part of the frame or the quality of the photograph poor (or the person is out of focus) that it is unrecognizable by a human observer who knows the person in question then likely the photograph doesn't contain much human interest in many cases being just a graphical image with no emotion (faces which typically make a person recognizable are also needed to communicate human communication and emotions). I am not interested in such curiosities though I suppose they can be seen as "art". I specifically am interested in visual communication of human emotions. And I think such records are valuable. (I am aware that e.g. color and gesture can also communicate emotion but still I think faces contribute to this greatly.)

I think the biometric use mentioned in the GDPR is likely referring to images made for the explicit purpose of providing a positive identification of the person using a computer algorithm, based on high resolution detall of the iris and similar features, not the case of street photography. Of course there may always be someone who takes a different interpretation but it is likely not taken up by courts in general (unless there are other reasons to rule in favour of the plaintiffs such as invasion of a child's treatment environment in a hospital or similar).

It seems no one in this discussion is changing any of their (correct or mistaken) personal views of the topic. Correction: while I was writing it seems in Ron's latest message he is a bit less worried about this development in EU now. ;) So the discussion may contributed something beneficial.
Title: Re: Street Photography in the EU
Post by: Les Olson on May 21, 2018, 20:44:08

1. Processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation shall be prohibited."

The above would at first glance appear to prohibit ordinary photography.

No, it does not affect non-commercial photography because the GDPR "does not apply to the processing of personal data [...] by a natural person in the course of a purely personal or household activity".

By appearing in public some things like one's race and other details are manifestly made public.

You are saying that "race" is the same as "skin colour"?  You a lawyer in Texas and you don't know that ain't never been so?  (For everyone else, the US always operated what was called the "one-drop rule", which said that anyone with even the remotest Black ancestry was Black, regardless of their appearance). 

If the subject is holding hands with someone their sexual orientation is manifestly made public.

No.  It is not as common as it used to be for Italian men to hold hands as a sign of friendship or respect, but it is still an everyday sight.

However, there doesn't seem much to prevent taking this interpretation and the EU lacks general principles of freedom of speech

No, the EU has the European Convention on Human Rights, which as well as Article 8 guaranteeing privacy, has Article 10: "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers."  There are stated exceptions which are very similar to those invented by the USSC for the 1st Amendment.

However, I would not put too much faith in an artistic exception as it is all to easy to say it's OK to make prints to hang at an exhibition, but everything else is prohibited.

I guess you would think that was easy to say, since that is the definition of the US Copyright Act: A “work of visual art” is— (2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.  AFAIK, the European Court of Human Rights has not pronounced on the lower limit of artistic merit, but the French courts have never confined it to exhibition prints.  Books count too.   
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 21, 2018, 21:34:28
Les, you are deep into circular reasoning and finding meaningless exceptions.  For example, an ordinary photograph of a person in public can't reveal if there is "one drop" of African blood.   If the photograph were accompanied with the description "person of mixed race" it's no longer just a photograph.  An ordinary photograph of LeBron James would certainly reveal he was of African descent but that is publicly manifested.  Just because something does not indicate a particular condition all the time it might some of the time which is where the publicly manifested exception comes in.  What about this simple thing do you not understand?  I saw two men kissing on the street a few days ago.  What about that was not a publicly manifested broadcast of their homosexual relationship?  There is context.  In Saudi Arabia two men holding hands is not an indication of homosexuality.  In the homophobic US, it is.  Same goes for men wearing Speedo swimsuits in certain contexts.

Ikka, I am a bit less worried, but just a bit.  You may note I make a distinction between human recognition of a person and machine recognition.  Your point about recognizing someone you know or better yet yourself is important.  We can do things machines are as yet unable to do.  I wholly support the idea that an image is biometric information only when taken for the specific purpose of machine recognition, or specially processed for that purpose.  You might note the specifications for a US passport photo require there be no shadows across the face.  Initially I suspected classing ordinary photos as biometric information was an error in interpretation by the authorities in Malta.  I wonder if they will back off from it and remain concerned about what they did and that others may copy them.  I find protections of free speech in the EU are obviously not enough to overturn French style rules on photography.  Likewise, I don't think the GDPR if applied reasonably outlaws publishing any photo taken without the subject's consent.  The exceptions for journalism or art can be significant or worthless.  I believe they are worthless because in the first two tests of the Quebec law (nearly identical to French law, no surprise) the court went out of it's way to take a narrow view of the journalism exception.  Sometimes I think Quebec passed this law to tell the English speaking part of Canada to go to hell.
Title: Re: Street Photography in the EU
Post by: BEZ on May 21, 2018, 22:13:25
Here is a challenge: name a significant photographer - street or not - whose work would be impossible under current EU law. One that springs to mind is Bruce Gilden, of whom street photographer Joel Meyerowitz has said "He's a fucking bully. I despise the work, I despise the attitude, he's an aggressive bully and all the pictures look alike because he only has one idea – 'I'm gonna embarrass you, I'm going to humiliate you.' I'm sorry, but no."

Les,
Why use Joel Meyerowitz to fight your corner, his misplaced prejudice does not prove anything. For what it is worth his often mundane "street photography" can not hold a candle to the work of Bruce Gilden.
As far as I am aware Bruce has never "upskirted" anyone, so thankfully he will be able to continue taking photographs.

Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 21, 2018, 22:20:18
BEZ, Les is great at finding things on the internet.  He must have a black belt in Googling.  I wonder what search terms led him to the criticism of Gilden, or if he just knew the man was controversial. 
Title: Re: Street Photography in the EU
Post by: BEZ on May 21, 2018, 23:10:25
BEZ, Les is great at finding things on the internet.  He must have a black belt in Googling.  I wonder what search terms led him to the criticism of Gilden, or if he just knew the man was controversial.

Ron,
Bruce Gilden is an easy target for people who do not understand candid "street photography". But Joel Meyerowitz should know better, he makes a fool of himself.

Back to your question, I regularly travel around Europe and sadly notice more hostility towards candid photography. I don't, but you can ask and people would normally happily pose for you.
Unfortunately any new privacy laws are going to fuel some peoples abjections to candid photography.

I carry on as normal taking candid shots, but wonder like you where we are going to end up with possible new restrictions.

Cheers
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 21, 2018, 23:45:55
BEZ, my next two trips are South America and Colorado in that order.  I might just avoid the problem and spend my money outside of Europe. 
Title: Re: Street Photography in the EU
Post by: BEZ on May 22, 2018, 00:10:57
Ron,
I am still happy to take candid shots in Britain and Europe. Exhibit them, and sell prints occasionally.

It is sad if your perception of candid photography in Europe keeps you from visiting.

 
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 22, 2018, 04:17:40
Ron,
I am still happy to take candid shots in Britain and Europe. Exhibit them, and sell prints occasionally.

It is sad if your perception of candid photography in Europe keeps you from visiting.

It is sad as you say.  How about the possibility of a 20mm Euro fine?  In the US the maximum criminal fine is $250,000.  Where do they get these ideas?.  If Europeans want this, fine, but they should be barred from the rest of the internet and have their own inferior experience in Europe.  Yes, I am mad as hell and I am not going to take it anymore.

Look, I can spend my money where I want to.  Despite the plain language of the regulation, Malta comes up with this insane interpretation which to me means there is nothing to prevent any other country from doing the same thing.  I don't need it.  Just look at the attitude Les has.  There are lots of people in the world like that.  I get harassed from time to time, even in the US.  The difference is in the US I can be confident I will win if a cop shows up.

I am probably willing to shoot in the UK.  On the continent, I need to see better guidance that what is available.  This garbage coming out of Malta is awful.
Title: Re: Street Photography in the EU
Post by: Les Olson on May 22, 2018, 08:52:12
Well if you can see the face most people who know the person will recognize him or her, even if the face is a fairly small part of the frame (such as in much of the classical street photography some French individuals pioneered).

The current French law only requires the consent of people who are "isolated and recognisable".  Surely photographers get the difference between a photograph of a person and a photograph of something else in which a person appears? 

As it happens, one of those classic photographs has been the subject of litigation in France - Doisneau's "Kiss at the Hotel de Ville".  The woman shown sued for a proportion of the profits on its sale, on the grounds that its publication infringed her privacy, and lost, on the grounds that she was not "recognisable".  The court was aided in this finding by the fact that the woman had become a relatively well-known actor, but had not previously been widely known to be the woman in the photograph, while several other women had claimed to be the woman shown.  The couple were drama students at the time who had met Doisneau in a cafe, and he paid them to walk around, with no script but doing what lovers in Paris do, so she could not plausibly claim that her Article 8 rights to respect for her private life had been breached.  The case also illustrates the point that many famous street photographs were either staged or taken with consent (all of Brassai, eg).

Title: Re: Street Photography in the EU
Post by: Les Olson on May 22, 2018, 10:33:27
An ordinary photograph of LeBron James would certainly reveal he was of African descent but that is publicly manifested.

Well, the meaning of "publicly manifest" has become a matter of controversy in Europe.  People have applied for asylum in Europe on the grounds that their being gay would lead to persecution in their home countries, and the question has arisen of whether they were entitled to asylum if they were subject to persecution only if they "publicly manifested" their sexual preference and could avoid persecution by being discrete.  AFAIK there is no definitive resolution, but some discussion papers have suggested that the resolution will be that "publicly manifest" will require intent to make the fact public, not merely a failure to effectively conceal it.  That would also apply to people with illnesses that affect their appearance, eg. 

The issue of "race" arises because, in France, eg, there are many people who identify as French but would be identified by others, on the basis of their appearance, as North African - ie, not French.  That is both offensive and prejudicial - to your chance of getting a job, eg.  In many countries it is accepted that it is offensive to categorise people based on their appearance, and perfectly normal to ask, in an official context, not what someone is, but how they wish to identify.  If that results in the faintly absurd necessity of asking LeBron James if he wishes to identify as Black before you can file him under "Black Men", it is a small price to pay for protecting people who wish to identify otherwise than as majority prejudice would assume.   
Title: Re: Street Photography in the EU
Post by: Ilkka Nissilä on May 22, 2018, 10:49:53
That "kiss" photo seems like a case of a commercial photography shoot where the models were hired but compensation was low relative to the money Doisneau made from it. A question of fair compensation. It's not candid photography and  the subjects had given their consent for that matter.

So if a photograph with people on the street is cropped to show only one person, then the person is isolated and can sue for the photo to have been taken? But this could be any photograph with sufficiently high technical quality. The "isolation" can be done in post. Personally this doesn't make any sense as when the person is isolated, it tells less about what they were doing, where they were, and things that could violate their privacy than a photograph where the person is e.g. talking with someone they don't want to be seen talking with. A close up (showing either just face, the body or something in between) just shows how they looked on that day nothing revealing or damning. I don't understand why someone would find that reason to sue: their secret lover (or the politician who colludes with them on something not publicly known) is outside of the picture. An isolated image tells less than an image showing a person in an environment, interacting with others.
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 22, 2018, 11:03:27
Les, are you trying to tell the world that a photo of LeBron James with no caption saying "African", obviously showing a male of African descent is disclosing racial information which is not manifestly public?  That's complete nonsense.

The more troubling part is "facial images" in the definition of biometric data.  It's vague as to whether it covers ordinary photographs with no other identifying information, especially if the face is a relatively small part of the image.  It's going to take some court cases to thresh this out.  Considering how high the fines are, a bright line test is needed.   

Yeah, a lot of street photography is staged.  People cheat at all kinds of things.  I don't believe the "kiss" photo is relevant to the situation here.
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 22, 2018, 11:11:06
So if a photograph with people on the street is cropped to show only one person, then the person is isolated and can sue for the photo to have been taken? But this could be any photograph with sufficiently high technical quality. The "isolation" can be done in post. Personally this doesn't make any sense as when the person is isolated, it tells less about what they were doing, where they were, and things that could violate their privacy than a photograph where the person is e.g. talking with someone they don't want to be seen talking with. A close up (showing either just face, the body or something in between) just shows how they looked on that day nothing revealing or damning. I don't understand why someone would find that reason to sue: their secret lover (or the politician who colludes with them on something not publicly known) is outside of the picture. An isolated image tells less than an image showing a person in an environment, interacting with others.

In Quebec a male criminal defendant was photographed arm and arm with a lady friend while on his way to court.  She sued under  a statute patterned after the French statute and won.  The court said the newspaper could have cropped her out of the photo.  In another case the newspaper article was about a certain building.  It was illustrated with a photo in which a girl was sitting on the steps of the building.  She sued and won.  With cases being decided this way, there is no place to run for cover under vague rules like "isolated and recognizable".

This "facial image" problem will be around for a while.  Administratively, Malta says ordinary photographs are biometric data.  Authorities in the UK say otherwise.

If ordinary photos are recognizable then even publishing photos on flickr or social media of the snapshot variety where the subject obviously consented to be photographed carries potential liability as the subject can always complain that they did not consent to publication.  That's how absurd all of this is.
Title: Re: Street Photography in the EU
Post by: Ilkka Nissilä on May 22, 2018, 12:15:50
In Quebec a male criminal defendant was photographed arm and arm with a lady friend while on his way to court.  She sued under  a statute patterned after the French statute and won.  The court said the newspaper could have cropped her out of the photo.

I think the impact of the image here is an important consideration: by associating the lady with the criminal defendant, it may have affected her employment prospects or life in other ways (I'm not familiar with the details of the case but I'm just exploring the reasoning). Of course such things can happen but perhaps the newpaper didn't need to make the association.

Quote
In another case the newspaper article was about a certain building.  It was illustrated with a photo in which a girl was sitting on the steps of the building.  She sued and won.

That sounds crazy. If the girl was a bit part of the image (it could be seen that she is the subject) then I could see how she could see it as a problem (since the article is about the building not her), perhaps just make sure no one is visible when photographing architecture for that kind of purposes.

I found this "Canadian supreme court has ruled that if a person is the subject of a photo (rather than just someone who happens to be in the photo), and that the photo was unauthorized, that is a violation of the subject's privacy. That being said, the court also ruled that such violation must present a very high degree of "discomfort and upset" for it to qualify." on a reddit forum.  That would not be all that unique: if a photograph of a person shows him/her in a way that can cause their reputation harm or disgrace then it would be actionable also in my country. It seems the differences in wordings are quite subtle.
Title: Re: Street Photography in the EU
Post by: Ilkka Nissilä on May 22, 2018, 12:57:01
Here is the Kamera & Bild magazine article on GDPR:

https://www.kamerabild.se/nyheter/lag-upphovsr-tt/gdpr-s-p-verkas-fotografer-av-den-nya-lagen

According to the view of the lawyer interviewed, street photography would be considered under artistic or journalistic uses and be exempt (in Sweden). I would expect similar exceptions to be passed into law in other countries though not necessarily all. In Finland the national legislation is delayed by a few weeks (current knowledge) and it will define how the GDPR is applied in my country.
Title: Re: Street Photography in the EU
Post by: Les Olson on May 22, 2018, 13:06:05
Les, up skirting is not street photography.  It's very existence isn't justification for outlawing street photography. 
It's too bad you devote your considerable skills to politicking for the abolition of street photography instead of coming up with a better analysis of the GDPR.

FCOL. It is not about my opinion.

Up-skirting is taking photographs, and it happens in the street, and you have already said, in relation to the disallowed Texas statute, that it is and ought to be protected by the 1st Amendment, so how is it not "street photography"? Up-skirting is about toxic masculinity. There is a spectrum of ways toxic masculinity affects women in public: groping, wolf-whistling, fat-shaming, objectification ... etc, etc.  There is a spectrum of ways toxic-masculinity-with-a-camera affects women: up-skirting and revenge porn, eg, but the spectrum goes all the way through to taking a lot of photographs of young women that emphasise their physical attractiveness. 

Nobody is suggesting "outlawing street photography".  The most that has been done is to allow people to refuse to be photographed, and to require consent to publish photographs of people. How does that outlaw street photography - unless you are taking photographs you know are offensive to the people shown so you know they would never consent.  That is why this is happening: people insist on their right to consent because they are not confident you will not take offensive photographs or use photographs in offensive ways.  Refusing to discuss how street photographers use their "rights" is just digging the hole deeper. 
 




 

Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 22, 2018, 14:37:07
Publication is integral to the process.  If a tree fell in the forest and nobody heard it...

Up skirting appears to be outside of the GDPR so long as the photo has no identifying information attached such as a caption with the subject's name.

Business news sources are reporting very few organizations are ready for the GDPR.  Anyone outside the EU who deals with EU customers, clients or patients is subject to the GDPR, but few realize it.  I see this whole thing blowing up in short order with countries outside the EU passing legislation to protect their citizens and residents from the collection of EU fines.
Title: Re: Street Photography in the EU
Post by: Les Olson on May 22, 2018, 14:53:54
Les, are you trying to tell the world that a photo of LeBron James with no caption saying "African", obviously showing a male of African descent is disclosing racial information which is not manifestly public? 

There is personal data, and sensitive personal data, which are data revealing "racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, [...] genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation" (Article 9).  Sensitive data is given a higher level of protection than ordinary data.  We all want our doctor to be fussier about data security than our tennis coach. 

Let me give an example: a photography school arranges for its graduating students to send their portfolios to a number of potential employers.  A potential employer calls and says they are interested in one of the students and could the school tell them how many times over the course the student missed classes because of illness? You don't think the school can tell them, do you?

The GDPR would also prevent the school attaching the students' ID photographs to their portfolios without their consent, if that would reveal their "race" or ethnicity. 

Suppose the photography school requires students to submit photo-essays on certain subjects - My Family, My Pet, etc. One student has submitted a photo-essay on their family revealing that they are Muslim.  The photographs have never been published or placed on the internet: they were submitted solely to satisfy course requirements.  If the prospective employers ask the school to give them everything the student has submitted for their course, the GDPR prevents the school releasing the images revealing religion without the student's consent.

Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 22, 2018, 14:59:44
Les your imagination is fertile.  However, your examples of the photography school don't involve street photography.  Taking my examples out of the street photography context is a waste of time, and off topic.
Title: Re: Street Photography in the EU
Post by: Les Olson on May 22, 2018, 16:17:34

So if a photograph with people on the street is cropped to show only one person, then the person is isolated and can sue for the photo to have been taken? But this could be any photograph with sufficiently high technical quality. The "isolation" can be done in post. Personally this doesn't make any sense as when the person is isolated, it tells less about what they were doing, where they were, and things that could violate their privacy than a photograph where the person is e.g. talking with someone they don't want to be seen talking with. A close up (showing either just face, the body or something in between) just shows how they looked on that day nothing revealing or damning. I don't understand why someone would find that reason to sue: their secret lover (or the politician who colludes with them on something not publicly known) is outside of the picture. An isolated image tells less than an image showing a person in an environment, interacting with others.

The case you need to look up in this connection is between the photographer Francois-Marie Banier and Isabelle de Chastenet de Puysegur. Banier published a book called Perdre la Tete, in which photographs of marginalised - often homeless and/or mentally ill - people were juxtaposed with photographs of famous or not famous but very definitely not marginalised people. Mme de Chastenet, who is every bit as magnificent as her name, was one of the latter. She was photographed sitting on a park bench, elegantly dressed, with her dog. She was definitely the subject of the photograph, and turned toward the camera so she was clearly identifiable.  There was no caption or text associated with the photograph - the court specifically noted this in the judgement.  She made three claims: that she had objected when she realised she was being photographed, that a woman sitting on a park bench is not an actualite - a public event at which one can expect to be photographed - and that the juxtaposition made her appear to be a rich woman indifferent to the sufferings of the marginalised. The court did not believe the first claim, with regard to the second said that Banier was making a coherent statement about, if not actually news, the state of the world, which was close enough to actualite, and with regard to the third said exactly what you said: the photograph showed an elegant woman sitting in the park with her dog.

However, the editor and owner of the magazine which published the covertly taken photographs of Prince William and Kate Middleton tried to make exactly the same argument: all they showed was that she looked very nice with her top off, and it didn't work for them: they were convicted and fined the maximum 45,000 euros each.

They can't sue because it has been taken unless they object at the time and it is taken anyway, but they can sue if it is published without consent, except for news reporting, artistic creation, etc, unless it is demeaning or seriously offensive to the person shown. But you are perfectly right that if it is simply a portrait the damages are likely to be minimal at most.  Even Kate Middleton, who was in a private place when she was photographed and was shown partially nude, only got 100,000 euros in damages.
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 22, 2018, 16:35:09
Les, all you are proving is there are a bunch of conflicting and confusing rules in the EU.  I believe 100,000 Euros is a serious amount of money just to have your picture snapped.  Besides, the fines now are 20 million Euros.

I now fear there will be a reversion to the old policies at flickr where candid shots of pretty girls were considered to violate their vague TOS, "don't be the guy".   I am waiting for the other shoe to drop.
Title: Re: Street Photography in the EU
Post by: Ilkka Nissilä on May 22, 2018, 16:41:35
She was in a private estate, so this case again has nothing to do with street photography in a public place.
Title: Re: Street Photography in the EU
Post by: Les Olson on May 22, 2018, 17:02:51

Why use Joel Meyerowitz to fight your corner, his misplaced prejudice does not prove anything. For what it is worth his often mundane "street photography" can not hold a candle to the work of Bruce Gilden.

Well, I just thought that since Meyerowitz had his first solo exhibition at MoMA in 1968, and ever since he has been regularly exhibited in major galleries all over the world, and his work is held in major collections all over the world, his opinion could not be dismissed as that of someone who does not understand street photography.  Thanks for setting me straight. 
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 22, 2018, 17:14:32
What Meyerowitz thinks of Gilden isn't relevant to the GDPR despite any prior French court cases.  That's because the whole issue boils down to whether a member state will interpret "facial images" to include ordinary photographs where the face is a small part of the photos.  Of course, in France confusing French law is relevant.  The interpretation, like that of Malta, that ordinary photos are biometric data ends not only street photography as we know it, but most casual snaps which get uploaded to the internet at the rate of many millions per day.  That's why the Malta interpretation is crazy.

I can now take a photo in my Houston neighborhood and if I publish it I have to risk that the subject is an EU citizen traveling here who can complain and put me at risk for a 20 million Euro fine.  I have photos taken all over the world and I have no idea where the subjects reside as they were taken at popular tourist destinations.  If I so much as change one bit of data on flickr after Thursday they have been processed and become subject to the GDPR.  C'est la vie and a small price to pay so some idiots in Brussels can act out their idealistic fantasies.    This is why I expect to see the US and other non EU countries enact legislation to protect their citizens from this insanity
Title: Re: Street Photography in the EU
Post by: Les Olson on May 22, 2018, 17:28:05
She was in a private estate, so this case again has nothing to do with street photography in a public place.

The photographer was in a public place - 1km away, but still - from which she was visible, and in the US the photographs would have been perfectly legal. As some guy named Donald Trump tweeted, "Kate Middleton is great — but she shouldn't be sunbathing in the nude — only herself to blame" (http://www.nydailynews.com/news/world/kate-middleton-wins-legal-battle-topless-pics-article-1.1161898). 

Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 22, 2018, 19:08:56
The photographer was in a public place - 1km away, but still - from which she was visible, and in the US the photographs would have been perfectly legal. As some guy named Donald Trump tweeted, "Kate Middleton is great — but she shouldn't be sunbathing in the nude — only herself to blame" (http://www.nydailynews.com/news/world/kate-middleton-wins-legal-battle-topless-pics-article-1.1161898).

I would say this is in some ways illustrates part of the conservative philosophy, that we are responsible for ourselves.
Title: Re: Street Photography in the EU
Post by: BEZ on May 23, 2018, 00:12:05
Well, I just thought that since Meyerowitz had his first solo exhibition at MoMA in 1968, and ever since he has been regularly exhibited in major galleries all over the world, and his work is held in major collections all over the world, his opinion could not be dismissed as that of someone who does not understand street photography.  Thanks for setting me straight.
Les,
I had no intention, or hope of setting you straight. I was pointing out that Joel Meyerowitz however much you admire him, made himself sound foolish with his irrational comments. But I expect you think his emotional rant against Bruce Gilden was rational.
I did not dismiss his opinion, or say he did not understand street photography. Quite the apposite in fact, I stated he should know better. My respect for his work made the gratuitous comments about Gilden even more baffling.

That aside If you have a problem with Bruce Gilden, why not just say so yourself?
Title: Re: Street Photography in the EU
Post by: Les Olson on May 23, 2018, 09:22:15
I was pointing out that Joel Meyerowitz however much you admire him, made himself sound foolish with his irrational comments. But I expect you think his emotional rant against Bruce Gilden was rational.
I did not dismiss his opinion,

Well, if calling Meyerowitz' opinion "irrational" and an "emotional rant" that made him sound "foolish" is not dismissive, words have changed their meaning.

It is perfectly rational to call Gilden a bully, in that he has only photographed people without consent when they are weaker than him. The yakuza did not have a flash and a 28mm lens thrust at their faces.  You don't have to agree with that reasoning, but saying it is irrational is ... irrational.

It is also rational to say that Gilden has only one idea, and commentators sympathetic to his work have said so.  Gilden's photographs are often read in the context of his own difficult childhood; as Chris Klatell wrote in the essay accompanying Gilden's book Faces "In the women’s scowls, in their sternly ambiguous glance, he sees his own mother’s face before she killed herself".  Basil Davidson wrote of Paul Strand that his great gift was to show you the world without demanding that you see the photographer as well. Gilden is the opposite: his photographs are not about the person shown, they are about him.

Which is fine, and Gilden's photographs are an effective and unsettling description of his inner life - although Gilden's inner life is, begging your pardon, not something I am particularly interested in.  The reason Gilden is a third-rate photographer is not that the photographs are all about his inner life, or that he is a bully, it is that the photographs are a crude and obvious metaphor for his inner life.  I am not particularly interested in Masahisa Fukase's inner life either, but he is a first-rate photographer because the photographs are a subtle and profound metaphor for his inner life.

As for the ethics of Gilden's methods, I will say nothing, because if the moral bankruptcy of addressing the ethical question by invoking the 1st Amendment is not obvious, I can't help you. 
Title: Re: Street Photography in the EU
Post by: BEZ on May 23, 2018, 12:33:46
The reason Gilden is a third-rate photographer is not that the photographs are all about his inner life, or that he is a bully, it is that the photographs are a crude and obvious metaphor for his inner life.  I am not particularly interested in Masahisa Fukase's inner life either, but he is a first-rate photographer because the photographs are a subtle and profound metaphor for his inner life.

As for the ethics of Gilden's methods, I will say nothing, because if the moral bankruptcy of addressing the ethical question by invoking the 1st Amendment is not obvious, I can't help you. 

Les,
An interesting thought provoking synopsis of your views on the work of Bruce Gilden. Regarding the 1st amendment, as I am not American then no you can not help me.
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 23, 2018, 16:46:39
BEZ, you should interpret Les Olson's comments in the context that he doesn't like street photography.

Those who value security over freedom will soon have neither.

US business sources are predicting the European web will become unusable;  it will be impossible to do a tech start up in Europe.  As the damage becomes apparent non EU countries will enact legislation to protect their citizens and residents from what amounts to modern piracy through unreasonable rules and extortionate administrative fines.  EU member states may enact legislation to limit the damage.  Eventually the GDPR will be cut back, but not until a lot of damage is done.  I don't want to be a test case so I will not visit Europe for a while.  I love South America, Asia and my own country is an exciting place to travel in.  Les can have snails.

For a current idea of the 1st amendment in the US look up Arne Svenson and "The Neighbors".  Photographers have the upper hand here.
Title: Re: Street Photography in the EU
Post by: Birna Rørslett on May 23, 2018, 17:52:40
Ron, you are getting too personal here.
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 23, 2018, 17:56:18
Ron, you are getting too personal here.

Sorry, I have edited the post.
Title: Re: Street Photography in the EU
Post by: Ilkka Nissilä on May 23, 2018, 18:44:18
Ron, I think you're overreacting. Probably GDPR will change very little regarding photography in most EU countries.

It's not like every start-up has the business model or collecting unwitting customer data and giving direct or indirect access to it to third parties in exchange for money. Most businesses whose business model is to offer customers a legitimate service or a product in exchange for money should be fine in the GDPR era. Those who seek to influence elections by illegitimately acquiring personal data and targeting a campaign based on it to reach their desired election result may not end up doing so well.

After all, that's what this is all about: the stability of our democratic system.

What I expect/hope to happen on the 25th is a reduction in the unwanted spam to my e-mail inbox. Let's see how it goes.
Title: Re: Street Photography in the EU
Post by: Les Olson on May 23, 2018, 19:07:19
I don't want to be a test case so I will not visit Europe for a while.
For a current idea of the 1st amendment in the US look up Arne Svenson and "The Neighbors".  Photographers have the upper hand here.

Why do I get the impression you like having the upper hand?  Although, if we were talking about photographers having the upper hand in relation to the 1st Amendment, Sally Mann might have a different view.

It would be worth actually reading the appeal court decision when Svenson was sued for invading his subjects' privacy:

"[...] by publishing plaintiffs' photos as a work of art without further action toward plaintiffs, defendant's conduct, however disturbing it may be, cannot properly, under the current state of the law, be deemed so "outrageous" that it went beyond decency and the protections of Civil Rights Law sections 50 and 51. To be sure, by our holding here — finding no viable cause of action for violation of the statutory right to privacy under these facts — we do not, in any way, mean to give short shrift to plaintiffs' concerns. Undoubtedly, like plaintiffs, many people would be rightfully offended by the intrusive manner in which the photographs were taken in this case. However, such complaints are best addressed to the Legislature —- the body empowered to remedy such inequities [...]. Needless to say, as illustrated by the troubling facts here, in these times of heightened threats to privacy posed by new and ever more invasive technologies, we call upon the Legislature to revisit this important issue, as we are constrained to apply the law as it exists." (https://law.justia.com/cases/new-york/appellate-division-first-department/2015/651826-13-12998.html)

Which, translated from judge-speak, means "You win, a-hole".  You can put your head in the sand or any warm, dark place you prefer, but that decision is a statement by the appeal court judges that a law that would make what Svenson did illegal would be just fine by them. 

Nobody thinks that what Svenson did is OK - as opposed to not illegal.  It is not OK because it makes everyday life impossible; as one of Svenson's victims said: "We can’t close the blinds all day long and stay sane, so we pray our neighbors are decent enough to leave us alone".  Svenson knew he was acting wrongly: he consulted a lawyer before he took any photographs, and stopped as soon as people complained (https://www.newyorker.com/magazine/2013/05/27/stakeout).  Privacy law - EU law, and the law the New York court invited the legislature to enact - does not come out of nowhere. It is enacted to deal with abuses of privacy. If photographers don't want abuses of privacy  dealt with by the law, not committing them would be a good place to start.   





Title: Re: Street Photography in the EU
Post by: Les Olson on May 23, 2018, 19:39:23
What I expect/hope to happen on the 25th is a reduction in the unwanted spam to my e-mail inbox. Let's see how it goes.

Actually, I am seeing a - temporary, I hope - increase in advertising, because all the advertisers have to send me an email telling me that under GDPR they have to get renewed consent to continue sending me messages.

Ron's concerns are misplaced. Requirements very similar to those of the GDPR have been in place in other countries for years - in Australia, eg, since 1988. Although there are some differences - the Australian law does not include a "right to be forgotten", eg - the key things as they affect businesses - privacy by design, demonstrable compliance, transparent information handling policies - are the same, and last time I looked, the sky had not fallen in Australia. In the US, the HIPAA was passed in 1996 and has applied similar provisions to health-related information ever since without causing any problems. 

He is simply wrong about photographs being biometric data.  The GDPR says that biometric data is data that allows an individual to be uniquely identified.  So a photograph that allows an individual to be uniquely identified is biometric data - the photograph I submitted when I renewed my passport, eg - but photographs that cannot be used to uniquely identify a person are not biometric data - all the photographs the passport office refuses to accept, eg. As anyone who has taken photographs for passports knows, it is not easy to get it right when you are trying, so the chances of doing it in the course of everyday photography must be remote. 
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 23, 2018, 20:09:10
[quote author=Ilkka Nissilä link=topic=7435.msg121366#msg121366 date=1527093858


He is simply wrong about photographs being biometric data.  The GDPR says that biometric data is data that allows an individual to be uniquely identified.  So a photograph that allows an individual to be uniquely identified is biometric data - the photograph I submitted when I renewed my passport, eg - but photographs that cannot be used to uniquely identify a person are not biometric data - all the photographs the passport office refuses to accept, eg. As anyone who has taken photographs for passports knows, it is not easy to get it right when you are trying, so the chances of doing it in the course of everyday photography must be remote.

I certainly hope that ordinary photographs are not biometric data and never said I thought they were.  However, Malta has chosen that interpretation.  With at least one member state asserting ordinary photos are biometric data and a possible 20 million Euro fine, I would be nuts not to be concerned, not misplaced.  As I recall Denmark justified it's ban on publishing street photos without consent as being required by the privacy directive on which the DGPR is based.  Let's see if they follow Malta.

While the ordinary meaning of the words strongly suggests that plain old photos are not biometric data, there is wiggle room.  The issue will be litigated and it will take years.  It appears the UK is taking the view that typical photos are not biometric.  A reasonable person would say there is a difference between a person being recognizable to someone who knew them or themselves, and being uniquely identifiable by a machine.

Right now I am afraid to do street photography in the EU until more member states issue their interpretations.  Les, I am glad to see there is some common ground on the definition of biometric data.  If the maximum fine was $10,000 I probably would not care.

As for Australia, data protection is the least of their problems.  Since they are not in the EU, they are not relevant to the discussion.

If the lights go out on Friday, don't blame me, LOL.
Title: Re: Street Photography in the EU
Post by: Ilkka Nissilä on May 23, 2018, 20:30:50
The passport photo that humans see when looking at the passport is not the biometric information that allows the person to be positively identified. AFAIK the biometric information is recorded by a special camera designed for the purpose (and at airports, there is another camera like that which records the iris (?) and compares it with the data stored in the passport (not in the human-visible photo)). I am quite sure the passport photos contains nowhere near the information to positively identify every person within billions. The reason the biometric information was added to passports was because the photo itself is not able to positively identify people.
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 23, 2018, 22:00:44
The passport photo that humans see when looking at the passport is not the biometric information that allows the person to be positively identified. AFAIK the biometric information is recorded by a special camera designed for the purpose (and at airports, there is another camera like that which records the iris (?) and compares it with the data stored in the passport (not in the human-visible photo)). I am quite sure the passport photos contains nowhere near the information to positively identify every person within billions. The reason the biometric information was added to passports was because the photo itself is not able to positively identify people.

Of course that makes sense, but Malta is playing by their own rules.  Considering the size of the fines, there is enough of a problem for me to rather travel outside the EU.  I think that many countries can restrict publishing street photographies without resorting to the GDPR or anything like it.  Perhaps we will go back to where we were.  Right now there is a great risk.  In the US we call this a chill on free speech.  That is something other than a clear prohibition, but that is sufficient to restrain free speech.  The vague Texas statute was like that because nobody knew exactly where the line would be drawn over whether sexual gratification was involved.  At first most in the state thought it was limited to zeroing in on the groin, buttocks or female breasts.  However, later the standard was whatever law enforcement wanted it to be at the time.  That meant nothing was safe since all humans have some degree of sexuality.  That statute has been replaced with something that is narrow enough to provide me cover, but it is still probably unconstitutional.

Unfortunately, that which seems obvious isn't always obvious to a judge who wants a particular result.
Title: Re: Street Photography in the EU
Post by: BEZ on May 23, 2018, 23:29:03
BEZ, you should interpret Les Olson's comments in the context that he doesn't like street photography.

Ron,
Yes he has shown his hand.

This thread seems done, no one really knows what impact GDPR may have on candid photography in Europe. I am going to pull a couple of Bruce Gilden's monographs from my bookcase. To browse and inspire me for a day's shooting tomorrow with my X-Pro and 18mm. I don't want to practice street ballet and become invisible like Joel Meyerowitz. But be full on alpha male like Bruce  :)

Title: Re: Street Photography in the EU
Post by: Alaun on May 23, 2018, 23:32:06
What's with twins?😎
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 23, 2018, 23:57:23
I am going to pull a couple of Bruce Gilden's monographs from my bookcase. To browse and inspire me for a day's shooting tomorrow with my X-Pro and 18mm. I don't want to practice street ballet and become invisible like Joel Meyerowitz. But be full on alpha male like Bruce  :)

Way out.
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 24, 2018, 03:58:43
I want to make it clear that just because I have not responded to a specific claim Les made it doesn't mean I agree with it.  He isn't a lawyer, but I think he should have become one.  The French cases could be good law in France, but not elsewhere.  They don't line up with the principles in the GDPR.  The nude shots of Kate M are a special situation because she is a a royal and probably on a secluded private estate.  If it was Bridget Jones getting some sun on a deserted but accessible public beach I don't know if the result would be the same.  (The current Texas statute would make it a crime, but most first amendment lawyers here think the statue is unconstitutional.  I correspond with one of them.)

I enjoy making and publishing street photography.  No doubt some think what I do is voyeuristic crap.  You can look at my account on flickr and reach your own conclusions.  Even if it is crap, a lot of folks are looking.  On a bad day I get over 30,000 image views, with occasional days going over 100k.  Too bad I don't get paid for it.  With that kind of audience, I would hate to give it up.   At least the world other than the EU is safe for now.  (OK forget about Muslim countries.)
Title: Re: Street Photography in the EU
Post by: Les Olson on May 24, 2018, 08:25:40
The passport photo that humans see when looking at the passport is not the biometric information that allows the person to be positively identified. AFAIK the biometric information is recorded by a special camera designed for the purpose (and at airports, there is another camera like that which records the iris (?) and compares it with the data stored in the passport (not in the human-visible photo)). I am quite sure the passport photos contains nowhere near the information to positively identify every person within billions. The reason the biometric information was added to passports was because the photo itself is not able to positively identify people.

I have a biometric passport, and when I applied for it they did not take a photograph with a special camera and they did not do an iris scan.  I submitted the form and an ordinary 38 x 50mm B&W photograph, printed from a small basic JPEG from a hand-held D200.  That photograph is the only source of the information on the chip.  The identifying data is the distance between the pupils, the length of the nose, etc.  The measurements are made from a scan of the photograph you submit and compared with the same measurements made by the camera at the airport. That is why they are so fussy about orientation and expression.

As you say, whether that process truly identifies people uniquely is doubtful, but the authorities seem to think it is close enough. The reason a photograph meeting biometric standards is sensitive data, and therefore subject to a higher level of protection, is that it can be used for identity theft.  I expect we all agree that is something the law ought to be trying to prevent.
Title: Re: Street Photography in the EU
Post by: Les Olson on May 24, 2018, 11:04:09
I enjoy making and publishing street photography.  No doubt some think what I do is voyeuristic crap.

Didn't they teach you in law school never to make a partial admission?  If it wasn't voyeuristic crap, you would not feel the need to admit it might be.  Just like if you want to be an alpha male, you aren't. 
Title: Re: Street Photography in the EU
Post by: Ilkka Nissilä on May 24, 2018, 12:58:21

Ok, I must be mistaken then. When I have a new passport made I only need to send in a new photo, but some years ago I recall fingerprints and photos being recorded for the biometric passport and I had assumed there is a special camera used to record the iris. But this may simply be my imagination. If it is really based on what information is on the passport photo I would be surprised if the identification is with high confidence. Combined with fingerprints, then I do believe the information may be sufficient, but now that I think of it I haven't needed to show my fingerprint at airports in a while. Maybe when traveling to the US?
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 24, 2018, 14:33:46


Les you are being nasty and personal.   Besides, it's not true.  You should know better.
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 24, 2018, 14:37:36
I had to get fingerprinted when I applied for Global Entry, the US international trusted traveler program.

A biometric facial image should one taken with the intent that it be used for that purpose and have other information linking it back to the identity of the subject.  If it isn't so limited then the result is any photo could be classed as biometric.  That doesn't just prohibit publishing street photography, it would apply to photos taken with consent but published without first obtaining consent.  There is a ton of that on social media.

I just reread the Malta document.  It does not use the word "biometric".  It simply ignores the exception for that which is "manifestly public" and says if the image is of an identifiable person the GDPR applies.  It's my view they are relying on the biometric data provision, although they don't say so.  Otherwise, they are playing a game that while your face may be visible in public an image of it is not manifestly public.  That's nuts.  Perhaps Brussels will have their own wrong answer to further muddy the waters.
Title: Re: Street Photography in the EU
Post by: tommiejeep on May 24, 2018, 15:44:37
OK, may make Street Photography less fun in some places but I think Ilkka has pointed to the culprits. Social Media.    Facebook has been using Facial Recognition for some time and it seems as if Amazon is now doing it.

The Indian government has been trying to force every citizen (resident) to have an Aadaar Card with full biometric info (yes photo taken by the machine) .   Supposed to be universal ID but then the Government made it mandatory for Banking, Customs Clearance, getting a Mobile phone connection and the rest.   Nothing to do with Social Media.   Ah, then someone hacked the system and the Supreme Court decided it was just too much.  1984????

Probably 75% of my people photos are taken with them knowing I am doing so.  I normally look for signs that the person/persons do not want their photos taken and some times I use very long lenses for Documentary images.  Unless in a moving vehicle, I often show them the images (and locally give them a 4"x 6" print later) .

I do not really use Social Media so not putting images out to the world.   I have an Instagram account for friends but only a few images but will probably take it down.
Some places are easier than others  ;)

Title: Re: Street Photography in the EU
Post by: Birna Rørslett on May 24, 2018, 16:00:22
Les and Ron: behave. Both of you. This is a public forum. The mutual bickering is tiresome and not that helpful in the context of the topic at hand.
Title: Re: Street Photography in the EU
Post by: Ilkka Nissilä on May 24, 2018, 16:02:54
If you do not publish images and only take them for personal use (not commercial, and not published) then GDPR doesn't apply.
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 24, 2018, 16:29:03
If you do not publish images and only take them for personal use (not commercial, and not published) then GDPR doesn't apply.

I believe that is correct.  However, I consider publication integral to the process and freedom of expression.  Note that making and displaying prints in public is publication.
Title: Re: Street Photography in the EU
Post by: Les Olson on May 24, 2018, 20:12:22
Les and Ron: behave. Both of you. This is a public forum.

He calls it street photography, but there are no streets, just young womens' bodies.  It is sexual harassment, it has to stop, and that means photographers taking a stand.

So, please, look at Ron's Flickr stream. If you think it is all fine, and there is no occasion for solidarity with his victims, I apologise for the disruption and will bow out.
Title: Re: Street Photography in the EU
Post by: CS on May 24, 2018, 20:22:16
He calls it street photography, but there are no streets, just young womens' bodies.  It is sexual harassment, it has to stop, and that means photographers taking a stand.

So, please, look at Ron's Flickr stream. If you think it is all fine, and there is no occasion for solidarity with his victims, I apologise for the disruption and will bow out.

I strongly disagree with your comments. You have an obvious bias, and you're attempting to deny Ron's ability to photograph as he pleases merely because you don't like it. That's selfish in the extreme.
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 24, 2018, 21:15:39
Thank you Carl.  This isn't the first time I have had to put up with this kind of behavior.  Someone is having trouble with definitions.  This sort of attack is one of the reasons why I publish using a screen name.
Title: Re: Street Photography in the EU
Post by: Bjørn Rørslett on May 24, 2018, 22:31:03
Can the sidetracking and personal agendas please now stop !!!

More and the Admins have no choice than lock and/or delete the entire thread.

This is a final warning
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 25, 2018, 00:08:44
Looks like it is May 25th in Europe.  I have a tingling sensation.  My skin is turning orange, like a pumpkin.

I just received this privacy policy from FotoFest:

 http://home.fotofest.org/accessibility-privacy.aspx (http://home.fotofest.org/accessibility-privacy.aspx)

It seems simple enough, although they say no data will be transferred to third parties.  Smugmug sent out it's new TOS to flickr users.  It's more understandable than most and no where as bad as it was years ago.  There are restrictions on privacy and publicity rights, but that doesn't ban street photography in general.

Some of the blogs I have read recommend that if one published street photography with a EU connection, don't supply and identifying information.  That's not just the name of the subject, but location and time as well.  I can't say if that will work.

It's happy hour in the USA.

Title: Re: Street Photography in the EU
Post by: Ann on May 25, 2018, 02:22:26
Street Photography is not something which I do very often (usually only when travelling abroad) but I have found that if someone objects to being photographed I respect their wishes and turn my lens on someone else.

Then I show the results to the people around me and the funny thing is that the one who was so anxious to not join in the fun now wants me to photograph her after all. (The reluctant ones always seem to be female!)

Long ago, I used to travel with colour Polaroids for ice-breaking but now the rear LCD on the Nikon seems to do the job.
Title: Re: Street Photography in the EU
Post by: Airy on May 25, 2018, 07:10:03
Greetings from Ljubljana, capital city of Slovenia, a European country. We have nice weather, up to 23°C with occasional showers. Streets are full of local inhabitants rather than tourists.

When not busy with our final conference, I spent some time wandering around and taking photos like an average tourist, on the street and in churches. Nobody cared, not even the mom of the little girl, and some even appreciated, such as this Romanian cimbalom player with whom I had a long conversation in various languages, in the middle of the shooting session.

The problem is that US citizens (and I'm not targeting Ron or anybody else in this particular case) live in a litigating culture where one professional out of 250 is a lawyer. To be compared with Japan, where the ratio is 1:6000 (if memory serves well - I read these figures a long time ago). Europe must lie somewhere inbetween. So the same piece of law that may appear as a threat to publishing photographers in the US may after all be a reasonable piece of privacy protection in the EU. Context is different.
Title: Re: Street Photography in the EU
Post by: Erik Lund on May 25, 2018, 08:38:19

Admin comment;

We don't allow anyone to 'hide' behind made up screen names here on NikonGear.

If you are not using your full name as your Screen Name, then please put your full name in the Signature box. Thanks  :)

http://nikongear.net/revival/index.php/topic,229.0.html
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 25, 2018, 14:28:58
https://www.marketwatch.com/story/chicago-tribune-la-times-go-dark-in-europe-after-gdpr-fail-2018-05-25 (https://www.marketwatch.com/story/chicago-tribune-la-times-go-dark-in-europe-after-gdpr-fail-2018-05-25)
Title: Re: Street Photography in the EU
Post by: Ilkka Nissilä on May 25, 2018, 15:39:39
I wonder how many Europeans read LA Times or Chicago Tribune.   ::)
Title: Re: Street Photography in the EU
Post by: Olivier on May 25, 2018, 16:43:00
Very well put, Airy.
Enjoy Slovenia, it is a wonderful country that manages to combine modern life with a delightful "Old Europe" feel.
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 25, 2018, 16:55:59
I wonder how many Europeans read LA Times or Chicago Tribune.   ::)

I read the Financial Times and the Economist.

My conclusion is the GDPR was written with intentional vagueness when it comes to publishing an ordinary photograph of a recognizable person.  It really boils down to whether the "manifestly public" exception applies.  One could say (I believe incorrectly) that while a person's face is manifestly public, a photo of it is not.  The regulation could have been specific on this point, but they chose not to be.  This is the best I can say as a lawyer and I would not trust a non lawyer's ideas on this complex topic.

My secondary conclusion is it is not worth expressing one's opinion on the internet.  I have to deal with nonsense like someone arguing the US does not have a tradition of free speech.  That's wrong. It's a fact, not my opinion.  I feel that I have been the victim of a heckler's veto.

I have been accused of sexual harassment.  What I do does not fit the definition which requires some connection to the workplace.  Perhaps 1% of my photos are of people working, usually in outdoor cafe's and almost all of them are in on it.   This accusation libel as a matter of fairness.  It's also another example of someone making it up as they go along.

What I can say is over the years some people have gone to a lot of effort to silence me.  One Canadian became obsessed to the point that he literally spent hours at it and opened multiple accounts in another forum to aid in his task.
Title: Re: Street Photography in the EU
Post by: Birna Rørslett on May 25, 2018, 17:09:29
The Admins' sentiments on this or other topics are not open to question and suffice it to state they have had no influence on the moderation actions being conducted in this thread. Or elsewhere on NG, for that matter. We just ask people to behave according to Forum Guide Lines.
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 25, 2018, 18:31:46
The Admins' sentiments on this or other topics are not open to question and suffice it to state they have had no influence on the moderation actions being conducted in this thread. Or elsewhere on NG, for that matter. We just ask people to behave according to Forum Guide Lines.

I will accept that, and edited appropriately, but still believe you should remove the reference to sexual harassment.  It is a serious charge and not applicable by definition.  Alternatively, convince Les to remove it.  If he wants to say the photos are lousy or anything else, that's just an opinion.

At any rate, it sure doesn't make NG look good.
Title: Re: Street Photography in the EU
Post by: Ilkka Nissilä on May 25, 2018, 18:50:38
I read the Financial Times and the Economist.

Yes, but those deal with global topics whereas at least the names of LA Times and Chicago Tribune suggest they are likely to be interesting mainly to those with an interest in the affairs of those regions.

Quote
My conclusion is the GDPR was written with intentional vagueness

Yes, exactly. They wanted to give individual member countries freedom to set the balance between privacy and other rights in national legislation. This is because individual countries have different cultures and priorities. The European Union is not a federation and there are forces in play which want a looser union or separation of their countries from the union, which is happening with the UK. If the EU tries to place too much unification effort on its members it may result in disintegration and going back in time in some ways.

Currently it is not clear how e.g. the hired photographer of an event (hired by the organizers to document the event for publicity) can accommodate GDPR with regards to recognizable members of the audience in the images. They could be in the thousands and it is not practical to ask for everyone's permission to use the photos. In the case of past events should we contact everyone who is recognizable in such photos and inform them of their rights? I doubt that. Two comments have been made: first, the need to inform depends on risk to the people whose information is stored: if there is no especial risk to them, then there is not a need to inform. Secondly, it has been suggested that if there is a legitimate need to store the information, then it should be ok. But ultimately we will find out when the national augmenting legislation is in place and then how the first cases regarding photography and GDPR turn out. I think the focus of GDPR is on the likes of Facebook etc. and not on event or street photographers. I think there is no need to be in panic mode as some have gone into.
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 25, 2018, 19:16:50
Well stated Ikka.  That's why I await official guidance from my favorite destinations.
Title: Re: Street Photography in the EU
Post by: Airy on May 25, 2018, 19:21:31
Indeed, "intentional vagueness" was well put by Ron, and you provided the background reasons.

The streetshooting goes on, although it has never been a totally risk-free business. Your camera could get snatched (did not occur to me), or building owners may start harrassing you (occurred twice, but they had no clue), or a guy photographed in 15m distance with a wide angle will shout at you and call his pals (occurred once - in Tokyo! but the brats were not Japanese), or hoodlums would remind you that you are not supposed to take pictures in their control zone (occurred once).

And Ron, by the way, the fact that you are not a professional photographer does not disqualify you as a photographer ; conversely, it is possible for non-lawyers to express valid opinions about law, at least every now and then. For my part, I carefully studied ten years of French "arrêts de la cour de cassation" (sth. like supreme court rulings) pertaining to photography rights, precisely to know from which direction the wind blows, and it keeps changing. Those rulings are especially called for when either justice was miscarried, or when laws appear not to address new and evolving situations properly.

It helped me undestanding the complexity of the cases, and by the way was an excellent reading : while our politicians have difficulties to assemble two ideas in a tweet, those judges have a great sense for literature, providing long sentences, with accurate vocabulary, exquisite nuances, and a smooth and compelling flow of ideas. This may sound "scholarly" but I like that, perhaps because I got good memories of school.
Title: Re: Street Photography in the EU
Post by: Ron Scubadiver on May 25, 2018, 19:35:24
Intentional vagueness is an art, but not often seen in a regulatory framework.  Ikka explained it well, national differences.

Sometimes a non lawyer can make valid comments, but I saw several that were dead wrong. 
Title: Re: Street Photography in the EU
Post by: Airy on May 26, 2018, 23:02:54
Street photography in the EU. Df, 50/2 AI at bellyheight in an escalator, framing and focus are guessed (I'm getting good at that). f/2.8.

 ;D