Author Topic: Street Photography in the EU  (Read 5422 times)

Jack Dahlgren

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Re: Street Photography in the EU
« Reply #30 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.)

Airy

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Re: Street Photography in the EU
« Reply #31 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.
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Les Olson

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Re: Street Photography in the EU
« Reply #32 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.
 

Frank Fremerey

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Re: Street Photography in the EU
« Reply #33 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
You are out there. You and your camera. You can shoot or not shoot as you please. Discover the world, Your world. Show it to us. Or we might never see it.

Ron Scubadiver

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Re: Street Photography in the EU
« Reply #34 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.   

Ron Scubadiver

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Re: Street Photography in the EU
« Reply #35 on: May 11, 2018, 15:53:05 »
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.


Ilkka Nissilä

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Re: Street Photography in the EU
« Reply #36 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.

Ron Scubadiver

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Re: Street Photography in the EU
« Reply #37 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.... 

Les Olson

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Re: Street Photography in the EU
« Reply #38 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".

Ron Scubadiver

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Re: Street Photography in the EU
« Reply #39 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. 

Airy

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Re: Street Photography in the EU
« Reply #40 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.
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Les Olson

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Re: Street Photography in the EU
« Reply #41 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). 

Ron Scubadiver

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Re: Street Photography in the EU
« Reply #42 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.

Ron Scubadiver

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Re: Street Photography in the EU
« Reply #43 on: May 13, 2018, 23:38:02 »
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...

Les Olson

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Re: Street Photography in the EU
« Reply #44 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.