Street Photography in the EU

[Ilkka Nissilä]

She was in a private estate, so this case again has nothing to do with street photography in a public place.

[Les Olson]

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.

Well, I just thought that since Meyerowitz had his first solo exhibition at MoMA in 1968, and ever since he has been regularly exhibited in major galleries all over the world, and his work is held in major collections all over the world, his opinion could not be dismissed as that of someone who does not understand street photography.  Thanks for setting me straight. 

[Ron Scubadiver]

What Meyerowitz thinks of Gilden isn't relevant to the GDPR despite any prior French court cases.  That's because the whole issue boils down to whether a member state will interpret "facial images" to include ordinary photographs where the face is a small part of the photos.  Of course, in France confusing French law is relevant.  The interpretation, like that of Malta, that ordinary photos are biometric data ends not only street photography as we know it, but most casual snaps which get uploaded to the internet at the rate of many millions per day.  That's why the Malta interpretation is crazy.

I can now take a photo in my Houston neighborhood and if I publish it I have to risk that the subject is an EU citizen traveling here who can complain and put me at risk for a 20 million Euro fine.  I have photos taken all over the world and I have no idea where the subjects reside as they were taken at popular tourist destinations.  If I so much as change one bit of data on flickr after Thursday they have been processed and become subject to the GDPR.  C'est la vie and a small price to pay so some idiots in Brussels can act out their idealistic fantasies.    This is why I expect to see the US and other non EU countries enact legislation to protect their citizens from this insanity

[Les Olson]

She was in a private estate, so this case again has nothing to do with street photography in a public place.

The photographer was in a public place - 1km away, but still - from which she was visible, and in the US the photographs would have been perfectly legal. As some guy named Donald Trump tweeted, "Kate Middleton is great — but she shouldn't be sunbathing in the nude — only herself to blame" (http://www.nydailynews.com/news/world/kate-middleton-wins-legal-battle-topless-pics-article-1.1161898). 

[Ron Scubadiver]

The photographer was in a public place - 1km away, but still - from which she was visible, and in the US the photographs would have been perfectly legal. As some guy named Donald Trump tweeted, "Kate Middleton is great — but she shouldn't be sunbathing in the nude — only herself to blame" (http://www.nydailynews.com/news/world/kate-middleton-wins-legal-battle-topless-pics-article-1.1161898).

I would say this is in some ways illustrates part of the conservative philosophy, that we are responsible for ourselves.

[BEZ]

Well, I just thought that since Meyerowitz had his first solo exhibition at MoMA in 1968, and ever since he has been regularly exhibited in major galleries all over the world, and his work is held in major collections all over the world, his opinion could not be dismissed as that of someone who does not understand street photography.  Thanks for setting me straight.

Les,
I had no intention, or hope of setting you straight. I was pointing out that Joel Meyerowitz however much you admire him, made himself sound foolish with his irrational comments. But I expect you think his emotional rant against Bruce Gilden was rational.
I did not dismiss his opinion, or say he did not understand street photography. Quite the apposite in fact, I stated he should know better. My respect for his work made the gratuitous comments about Gilden even more baffling.

That aside If you have a problem with Bruce Gilden, why not just say so yourself?

[Les Olson]

I was pointing out that Joel Meyerowitz however much you admire him, made himself sound foolish with his irrational comments. But I expect you think his emotional rant against Bruce Gilden was rational.
I did not dismiss his opinion,

Well, if calling Meyerowitz' opinion "irrational" and an "emotional rant" that made him sound "foolish" is not dismissive, words have changed their meaning.

It is perfectly rational to call Gilden a bully, in that he has only photographed people without consent when they are weaker than him. The yakuza did not have a flash and a 28mm lens thrust at their faces.  You don't have to agree with that reasoning, but saying it is irrational is ... irrational.

It is also rational to say that Gilden has only one idea, and commentators sympathetic to his work have said so.  Gilden's photographs are often read in the context of his own difficult childhood; as Chris Klatell wrote in the essay accompanying Gilden's book Faces "In the women’s scowls, in their sternly ambiguous glance, he sees his own mother’s face before she killed herself".  Basil Davidson wrote of Paul Strand that his great gift was to show you the world without demanding that you see the photographer as well. Gilden is the opposite: his photographs are not about the person shown, they are about him.

Which is fine, and Gilden's photographs are an effective and unsettling description of his inner life - although Gilden's inner life is, begging your pardon, not something I am particularly interested in.  The reason Gilden is a third-rate photographer is not that the photographs are all about his inner life, or that he is a bully, it is that the photographs are a crude and obvious metaphor for his inner life.  I am not particularly interested in Masahisa Fukase's inner life either, but he is a first-rate photographer because the photographs are a subtle and profound metaphor for his inner life.

As for the ethics of Gilden's methods, I will say nothing, because if the moral bankruptcy of addressing the ethical question by invoking the 1st Amendment is not obvious, I can't help you. 

[BEZ]

The reason Gilden is a third-rate photographer is not that the photographs are all about his inner life, or that he is a bully, it is that the photographs are a crude and obvious metaphor for his inner life.  I am not particularly interested in Masahisa Fukase's inner life either, but he is a first-rate photographer because the photographs are a subtle and profound metaphor for his inner life.

As for the ethics of Gilden's methods, I will say nothing, because if the moral bankruptcy of addressing the ethical question by invoking the 1st Amendment is not obvious, I can't help you. 

Les,
An interesting thought provoking synopsis of your views on the work of Bruce Gilden. Regarding the 1st amendment, as I am not American then no you can not help me.

[Ron Scubadiver]

BEZ, you should interpret Les Olson's comments in the context that he doesn't like street photography.

Those who value security over freedom will soon have neither.

US business sources are predicting the European web will become unusable;  it will be impossible to do a tech start up in Europe.  As the damage becomes apparent non EU countries will enact legislation to protect their citizens and residents from what amounts to modern piracy through unreasonable rules and extortionate administrative fines.  EU member states may enact legislation to limit the damage.  Eventually the GDPR will be cut back, but not until a lot of damage is done.  I don't want to be a test case so I will not visit Europe for a while.  I love South America, Asia and my own country is an exciting place to travel in.  Les can have snails.

For a current idea of the 1st amendment in the US look up Arne Svenson and "The Neighbors".  Photographers have the upper hand here.

[Birna Rørslett]

Ron, you are getting too personal here.

[Ron Scubadiver]

Ron, you are getting too personal here.

Sorry, I have edited the post.

[Ilkka Nissilä]

Ron, I think you're overreacting. Probably GDPR will change very little regarding photography in most EU countries.

It's not like every start-up has the business model or collecting unwitting customer data and giving direct or indirect access to it to third parties in exchange for money. Most businesses whose business model is to offer customers a legitimate service or a product in exchange for money should be fine in the GDPR era. Those who seek to influence elections by illegitimately acquiring personal data and targeting a campaign based on it to reach their desired election result may not end up doing so well.

After all, that's what this is all about: the stability of our democratic system.

What I expect/hope to happen on the 25th is a reduction in the unwanted spam to my e-mail inbox. Let's see how it goes.

[Les Olson]

I don't want to be a test case so I will not visit Europe for a while.
For a current idea of the 1st amendment in the US look up Arne Svenson and "The Neighbors".  Photographers have the upper hand here.

Why do I get the impression you like having the upper hand?  Although, if we were talking about photographers having the upper hand in relation to the 1st Amendment, Sally Mann might have a different view.

It would be worth actually reading the appeal court decision when Svenson was sued for invading his subjects' privacy:

"[...] by publishing plaintiffs' photos as a work of art without further action toward plaintiffs, defendant's conduct, however disturbing it may be, cannot properly, under the current state of the law, be deemed so "outrageous" that it went beyond decency and the protections of Civil Rights Law sections 50 and 51. To be sure, by our holding here — finding no viable cause of action for violation of the statutory right to privacy under these facts — we do not, in any way, mean to give short shrift to plaintiffs' concerns. Undoubtedly, like plaintiffs, many people would be rightfully offended by the intrusive manner in which the photographs were taken in this case. However, such complaints are best addressed to the Legislature —- the body empowered to remedy such inequities [...]. Needless to say, as illustrated by the troubling facts here, in these times of heightened threats to privacy posed by new and ever more invasive technologies, we call upon the Legislature to revisit this important issue, as we are constrained to apply the law as it exists." (https://law.justia.com/cases/new-york/appellate-division-first-department/2015/651826-13-12998.html)

Which, translated from judge-speak, means "You win, a-hole".  You can put your head in the sand or any warm, dark place you prefer, but that decision is a statement by the appeal court judges that a law that would make what Svenson did illegal would be just fine by them. 

Nobody thinks that what Svenson did is OK - as opposed to not illegal.  It is not OK because it makes everyday life impossible; as one of Svenson's victims said: "We can’t close the blinds all day long and stay sane, so we pray our neighbors are decent enough to leave us alone".  Svenson knew he was acting wrongly: he consulted a lawyer before he took any photographs, and stopped as soon as people complained (https://www.newyorker.com/magazine/2013/05/27/stakeout).  Privacy law - EU law, and the law the New York court invited the legislature to enact - does not come out of nowhere. It is enacted to deal with abuses of privacy. If photographers don't want abuses of privacy  dealt with by the law, not committing them would be a good place to start.   

[Les Olson]

What I expect/hope to happen on the 25th is a reduction in the unwanted spam to my e-mail inbox. Let's see how it goes.

Actually, I am seeing a - temporary, I hope - increase in advertising, because all the advertisers have to send me an email telling me that under GDPR they have to get renewed consent to continue sending me messages.

Ron's concerns are misplaced. Requirements very similar to those of the GDPR have been in place in other countries for years - in Australia, eg, since 1988. Although there are some differences - the Australian law does not include a "right to be forgotten", eg - the key things as they affect businesses - privacy by design, demonstrable compliance, transparent information handling policies - are the same, and last time I looked, the sky had not fallen in Australia. In the US, the HIPAA was passed in 1996 and has applied similar provisions to health-related information ever since without causing any problems. 

He is simply wrong about photographs being biometric data.  The GDPR says that biometric data is data that allows an individual to be uniquely identified.  So a photograph that allows an individual to be uniquely identified is biometric data - the photograph I submitted when I renewed my passport, eg - but photographs that cannot be used to uniquely identify a person are not biometric data - all the photographs the passport office refuses to accept, eg. As anyone who has taken photographs for passports knows, it is not easy to get it right when you are trying, so the chances of doing it in the course of everyday photography must be remote. 

[Ron Scubadiver]

[quote author=Ilkka Nissilä link=topic=7435.msg121366#msg121366 date=1527093858


He is simply wrong about photographs being biometric data.  The GDPR says that biometric data is data that allows an individual to be uniquely identified.  So a photograph that allows an individual to be uniquely identified is biometric data - the photograph I submitted when I renewed my passport, eg - but photographs that cannot be used to uniquely identify a person are not biometric data - all the photographs the passport office refuses to accept, eg. As anyone who has taken photographs for passports knows, it is not easy to get it right when you are trying, so the chances of doing it in the course of everyday photography must be remote.

I certainly hope that ordinary photographs are not biometric data and never said I thought they were.  However, Malta has chosen that interpretation.  With at least one member state asserting ordinary photos are biometric data and a possible 20 million Euro fine, I would be nuts not to be concerned, not misplaced.  As I recall Denmark justified it's ban on publishing street photos without consent as being required by the privacy directive on which the DGPR is based.  Let's see if they follow Malta.

While the ordinary meaning of the words strongly suggests that plain old photos are not biometric data, there is wiggle room.  The issue will be litigated and it will take years.  It appears the UK is taking the view that typical photos are not biometric.  A reasonable person would say there is a difference between a person being recognizable to someone who knew them or themselves, and being uniquely identifiable by a machine.

Right now I am afraid to do street photography in the EU until more member states issue their interpretations.  Les, I am glad to see there is some common ground on the definition of biometric data.  If the maximum fine was $10,000 I probably would not care.

As for Australia, data protection is the least of their problems.  Since they are not in the EU, they are not relevant to the discussion.

If the lights go out on Friday, don't blame me, LOL.