Street Photography in the EU

[BEZ]

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.

 

[Ron Scubadiver]

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.

[Les Olson]

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).

[Les Olson]

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.   

[Ilkka Nissilä]

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.

[Ron Scubadiver]

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.

[Ron Scubadiver]

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.

[Ilkka Nissilä]

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.

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.

[Ilkka Nissilä]

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.

[Les Olson]

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. 
 




 

[Ron Scubadiver]

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.

[Les Olson]

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.

[Ron Scubadiver]

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.

[Les Olson]

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.

[Ron Scubadiver]

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.