Street Photography in the EU

[Ilkka Nissilä]

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.

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.

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.

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.

[Ron Scubadiver]

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.

[Ron Scubadiver]

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.

[Ilkka Nissilä]

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".

[Ron Scubadiver]

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". 

[Airy]

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.

[Les Olson]

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. 

[Les Olson]

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.

[Anthony]

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.

[Ilkka Nissilä]

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.

[Ron Scubadiver]

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.

[Les Olson]

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. 

[Ron Scubadiver]

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.

[Les Olson]

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.

[Ron Scubadiver]

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.