Street Photography in the EU

[Ilkka Nissilä]

The passport photo that humans see when looking at the passport is not the biometric information that allows the person to be positively identified. AFAIK the biometric information is recorded by a special camera designed for the purpose (and at airports, there is another camera like that which records the iris (?) and compares it with the data stored in the passport (not in the human-visible photo)). I am quite sure the passport photos contains nowhere near the information to positively identify every person within billions. The reason the biometric information was added to passports was because the photo itself is not able to positively identify people.

[Ron Scubadiver]

The passport photo that humans see when looking at the passport is not the biometric information that allows the person to be positively identified. AFAIK the biometric information is recorded by a special camera designed for the purpose (and at airports, there is another camera like that which records the iris (?) and compares it with the data stored in the passport (not in the human-visible photo)). I am quite sure the passport photos contains nowhere near the information to positively identify every person within billions. The reason the biometric information was added to passports was because the photo itself is not able to positively identify people.

Of course that makes sense, but Malta is playing by their own rules.  Considering the size of the fines, there is enough of a problem for me to rather travel outside the EU.  I think that many countries can restrict publishing street photographies without resorting to the GDPR or anything like it.  Perhaps we will go back to where we were.  Right now there is a great risk.  In the US we call this a chill on free speech.  That is something other than a clear prohibition, but that is sufficient to restrain free speech.  The vague Texas statute was like that because nobody knew exactly where the line would be drawn over whether sexual gratification was involved.  At first most in the state thought it was limited to zeroing in on the groin, buttocks or female breasts.  However, later the standard was whatever law enforcement wanted it to be at the time.  That meant nothing was safe since all humans have some degree of sexuality.  That statute has been replaced with something that is narrow enough to provide me cover, but it is still probably unconstitutional.

Unfortunately, that which seems obvious isn't always obvious to a judge who wants a particular result.

[BEZ]

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

Ron,
Yes he has shown his hand.

This thread seems done, no one really knows what impact GDPR may have on candid photography in Europe. I am going to pull a couple of Bruce Gilden's monographs from my bookcase. To browse and inspire me for a day's shooting tomorrow with my X-Pro and 18mm. I don't want to practice street ballet and become invisible like Joel Meyerowitz. But be full on alpha male like Bruce 

[Alaun]

What's with twins?😎

[Ron Scubadiver]

I am going to pull a couple of Bruce Gilden's monographs from my bookcase. To browse and inspire me for a day's shooting tomorrow with my X-Pro and 18mm. I don't want to practice street ballet and become invisible like Joel Meyerowitz. But be full on alpha male like Bruce 

Way out.

[Ron Scubadiver]

I want to make it clear that just because I have not responded to a specific claim Les made it doesn't mean I agree with it.  He isn't a lawyer, but I think he should have become one.  The French cases could be good law in France, but not elsewhere.  They don't line up with the principles in the GDPR.  The nude shots of Kate M are a special situation because she is a a royal and probably on a secluded private estate.  If it was Bridget Jones getting some sun on a deserted but accessible public beach I don't know if the result would be the same.  (The current Texas statute would make it a crime, but most first amendment lawyers here think the statue is unconstitutional.  I correspond with one of them.)

I enjoy making and publishing street photography.  No doubt some think what I do is voyeuristic crap.  You can look at my account on flickr and reach your own conclusions.  Even if it is crap, a lot of folks are looking.  On a bad day I get over 30,000 image views, with occasional days going over 100k.  Too bad I don't get paid for it.  With that kind of audience, I would hate to give it up.   At least the world other than the EU is safe for now.  (OK forget about Muslim countries.)

[Les Olson]

The passport photo that humans see when looking at the passport is not the biometric information that allows the person to be positively identified. AFAIK the biometric information is recorded by a special camera designed for the purpose (and at airports, there is another camera like that which records the iris (?) and compares it with the data stored in the passport (not in the human-visible photo)). I am quite sure the passport photos contains nowhere near the information to positively identify every person within billions. The reason the biometric information was added to passports was because the photo itself is not able to positively identify people.

I have a biometric passport, and when I applied for it they did not take a photograph with a special camera and they did not do an iris scan.  I submitted the form and an ordinary 38 x 50mm B&W photograph, printed from a small basic JPEG from a hand-held D200.  That photograph is the only source of the information on the chip.  The identifying data is the distance between the pupils, the length of the nose, etc.  The measurements are made from a scan of the photograph you submit and compared with the same measurements made by the camera at the airport. That is why they are so fussy about orientation and expression.

As you say, whether that process truly identifies people uniquely is doubtful, but the authorities seem to think it is close enough. The reason a photograph meeting biometric standards is sensitive data, and therefore subject to a higher level of protection, is that it can be used for identity theft.  I expect we all agree that is something the law ought to be trying to prevent.

[Les Olson]

I enjoy making and publishing street photography.  No doubt some think what I do is voyeuristic crap.

Didn't they teach you in law school never to make a partial admission?  If it wasn't voyeuristic crap, you would not feel the need to admit it might be.  Just like if you want to be an alpha male, you aren't. 

[Ilkka Nissilä]

Ok, I must be mistaken then. When I have a new passport made I only need to send in a new photo, but some years ago I recall fingerprints and photos being recorded for the biometric passport and I had assumed there is a special camera used to record the iris. But this may simply be my imagination. If it is really based on what information is on the passport photo I would be surprised if the identification is with high confidence. Combined with fingerprints, then I do believe the information may be sufficient, but now that I think of it I haven't needed to show my fingerprint at airports in a while. Maybe when traveling to the US?

[Ron Scubadiver]

Les you are being nasty and personal.   Besides, it's not true.  You should know better.

[Ron Scubadiver]

I had to get fingerprinted when I applied for Global Entry, the US international trusted traveler program.

A biometric facial image should one taken with the intent that it be used for that purpose and have other information linking it back to the identity of the subject.  If it isn't so limited then the result is any photo could be classed as biometric.  That doesn't just prohibit publishing street photography, it would apply to photos taken with consent but published without first obtaining consent.  There is a ton of that on social media.

I just reread the Malta document.  It does not use the word "biometric".  It simply ignores the exception for that which is "manifestly public" and says if the image is of an identifiable person the GDPR applies.  It's my view they are relying on the biometric data provision, although they don't say so.  Otherwise, they are playing a game that while your face may be visible in public an image of it is not manifestly public.  That's nuts.  Perhaps Brussels will have their own wrong answer to further muddy the waters.

[tommiejeep]

OK, may make Street Photography less fun in some places but I think Ilkka has pointed to the culprits. Social Media.    Facebook has been using Facial Recognition for some time and it seems as if Amazon is now doing it.

The Indian government has been trying to force every citizen (resident) to have an Aadaar Card with full biometric info (yes photo taken by the machine) .   Supposed to be universal ID but then the Government made it mandatory for Banking, Customs Clearance, getting a Mobile phone connection and the rest.   Nothing to do with Social Media.   Ah, then someone hacked the system and the Supreme Court decided it was just too much.  1984?

Probably 75% of my people photos are taken with them knowing I am doing so.  I normally look for signs that the person/persons do not want their photos taken and some times I use very long lenses for Documentary images.  Unless in a moving vehicle, I often show them the images (and locally give them a 4"x 6" print later) .

I do not really use Social Media so not putting images out to the world.   I have an Instagram account for friends but only a few images but will probably take it down.
Some places are easier than others 

[Birna Rørslett]

Les and Ron: behave. Both of you. This is a public forum. The mutual bickering is tiresome and not that helpful in the context of the topic at hand.

[Ilkka Nissilä]

If you do not publish images and only take them for personal use (not commercial, and not published) then GDPR doesn't apply.

[Ron Scubadiver]

If you do not publish images and only take them for personal use (not commercial, and not published) then GDPR doesn't apply.

I believe that is correct.  However, I consider publication integral to the process and freedom of expression.  Note that making and displaying prints in public is publication.