Street Photography in the EU

[Anthony]

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The fact that those laws are no longer in effect is beside the point: they were passed, and similar laws can and will be passed again if they suit the convenience of government.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. 

[Les Olson]

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. 

[Ron Scubadiver]

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.

[Les Olson]

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.   

[Ilkka Nissilä]

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.

[Ron Scubadiver]

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.

[Les Olson]

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? 

[Ron Scubadiver]

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. 

[Ilkka Nissilä]

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.

[Les Olson]

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.   

[Ron Scubadiver]

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.

[BEZ]

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.

[Ron Scubadiver]

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. 

[BEZ]

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

[Ron Scubadiver]

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.