Author Topic: Street Photography in the EU  (Read 9244 times)

Jacques Pochoy

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Re: Street Photography in the EU
« Reply #45 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)...
“A photograph is a moral decision taken in one eighth of a second. ” ― Salman Rushdie, The Ground Beneath Her Feet.

Anthony

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Re: Street Photography in the EU
« Reply #46 on: May 14, 2018, 13:59:56 »
UK law on these issues is not the same as French law.
Anthony Macaulay

Ilkka Nissilä

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Re: Street Photography in the EU
« Reply #47 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.

Les Olson

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Re: Street Photography in the EU
« Reply #48 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. 


Ron Scubadiver

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Re: Street Photography in the EU
« Reply #49 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.

Eric Borgström

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Re: Street Photography in the EU
« Reply #50 on: May 14, 2018, 18:04:46 »
Wise decision.[/font]

Airy

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Re: Street Photography in the EU
« Reply #51 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.
Airy Magnien

Fons Baerken

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Re: Street Photography in the EU
« Reply #52 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.

Airy

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Re: Street Photography in the EU
« Reply #53 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.
Airy Magnien

Ilkka Nissilä

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Re: Street Photography in the EU
« Reply #54 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.

Ron Scubadiver

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Re: Street Photography in the EU
« Reply #55 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.

Les Olson

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Re: Street Photography in the EU
« Reply #56 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.

Ron Scubadiver

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Re: Street Photography in the EU
« Reply #57 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.

Les Olson

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Re: Street Photography in the EU
« Reply #58 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?

BEZ

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Re: Street Photography in the EU
« Reply #59 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.
Bez