Gordon Scammell

This may alter what you photograph

Recommended Posts

Well worth a read.  

 

Data Protection and Street Photography

Both the right to privacy and freedom of expression are fundamental human rights enshrined in the European Convention on Human Rights. No right is absolute and, where two rights might potentially lead to a level of conflict, competent authorities have to ensure that a fair and equitable balance is reached

In the case of street photography, the Office of the Information and Data Protection Commissioner recognises the artistic attributes which certainly drive photographers to capture un-posed and un-staged images, predominantly when such images identify natural persons who happen to be in public places.

Article 5 of the Data Protection Act stipulates that the Act shall not apply when the processing of personal data is undertaken by a natural person in the course of a purely personal activity. This means that, if a photographer snaps a picture which identifies a natural person, as long as such image is kept by the photographer for a purely personal activity, the law will not apply.

Any other processing falling outside the parameters of this provision will effectively make the law applicable.

The law is applicable to the processing of personal data, where the term ‘processing’ refers to any operation which is performed with the information (e.g. collection, recording, storing, etc.) whereas ‘personal data’ is defined as any data which relates to an identified or an identifiable natural person. Therefore if a photographer takes a photograph of an identifiable natural person in a public space and the same photograph is published, the law and its underlying principles will apply. Different data protection considerations will be made in cases where a photograph is exposed in an exhibition as opposed to the case where a photograph is published on a publication or online.

Although, as a general rule, each case should be evaluated on its own merits, in the process of establishing whether a photograph fulfils the legitimate data protection principles and criteria, this Office makes the following considerations prior to reaching a final decision:

 

1. whether the photo was taken in a public place;
2. whether the individual is a public person;
3. whether the publication was in the public interest; and
4. whether the photograph was taken during a public event.

It might be argued that the circumstances surrounding the elements of street photography might be seen different and contrasting to those of photojournalism. However, in terms of the law, the main data protection principles apply in an equal manner. One of the fundamental principles is the purpose limitation principle. This principle dictates that, apart from satisfying the requirements of providing adequate information to the data subject and seeking his consent when processing personal data, the information should only be processed for the explicit purpose for which it was collected and not in a way which is incompatible with the original purpose.

This Office is set to be pro-active and provide the necessary information so that people practising in this field, being professionals or amateurs, adopt the right procedures and carry out their activities with full respect of the law. This Office cannot advocate a complaints- driven approach where, if a data subject does not complain about a violation of his privacy rights, it is taken as given that the photographer might have not breached the provisions of the Act. Photographers should always employ good practice measures and ensure that, when in doubt about a particular circumstance, they should seek this Office’s advice.

Our culture must change into one which accepts that all individuals enjoy a reasonable expectation of privacy. What might constitute a good candid picture for a street photographer might, on the other hand, adversely affect the privacy rights of the individual captured on the photograph, particularly where such person might be facing difficult situations or extraordinary life circumstances.

Therefore, this Office strongly recommends that when the photographer intends to publish or commercially use a photograph clearly identifying a data subject, the provisions of article 9(a) of the Data Protection Act must be satisfied. This shall mean that no processing shall be allowed without the informed consent of the data subject. Although the law does not specify that consent has to be in writing, this Office actively promotes the model that a valid consent should involve a positive action indicating that the data subject has effectively signified agreement to such processing. The most practical and secure manner how to implement this concept is by seeking a written consent.

 

If, due to the restricted circumstances of the shot, the photographer is not a realistic position to obtain the consent and would still like to use the photograph for purposes falling outside the household exemption, this Office recommends the blurring of the face as a possible approach to render the individual unidentifiable.

Where the photographer fails to obtain the consent and forges ahead with the publication, the same photographer may be subject to action (depending on the nature of the case) by this Office if a complaint is lodged or may even face a civil claim for compensation from the individual(s) concerned.

The law also entitles individuals to withdraw their lawfully granted consent on compelling legitimate grounds. In the case of online publications, given that the removal of an image would be possible after its publication, if an individual submits similar request to the photographer, such image shall be removed.

It is also imperative to distinguish between data protection and privacy. Although the two terms are, at times, used interchangeably, they are not entirely equivalent. Privacy is certainly broader that data protection, in that, the latter is a tool to protect the former. Therefore, what might be deemed to be an activity which does not constitute a breach of data protection, might on the other hand be considered as invading the privacy of the individual. However, this Office’s remit only extends to enforcing the data protection rules and investigate any case by closely following such rules to ensure that the data subjectsright to privacy is safeguarded. 

Edited by Gordon Scammell
Update

Share this post


Link to post
Share on other sites

The moment I encounter the phrase DATA PROTECTION or DATA PROTECTION ACT, my brain snaps shut and the fluids in my tubes freezes to icy sludge. I am therefore unable to proceed.

Share this post


Link to post
Share on other sites
3 minutes ago, Robert M Estall said:

The moment I encounter the phrase DATA PROTECTION or DATA PROTECTION ACT, my brain snaps shut and the fluids in my tubes freezes to icy sludge. I am therefore unable to proceed.

+1

Share this post


Link to post
Share on other sites

So all photographs that show identifiable people, whether taken in a public place or not, render us liable to prosecution under the DPA unless we either obtain consent from every person in the picture or blur all the faces.

 

This effectively kills most photography stone dead, does it not?

 

Alan

 

Share this post


Link to post
Share on other sites

Burying ones head in the sand won't help you when faced with legal action.  This is going to be a major game changer.  

I think Alamy may very well be forced to change their rules.  Photograph a news event and if one person recognises themselves and claim they are distressed at appearing in the image then you are open to a claim.  An individual who takes a day off claiming sickness and then is photographed attending a demo could make a claim.  

Newspapers may very well demand that all identifiable faces in images are blurred.  

It's barmy, it doesn't make any logical sense - but there individuals who will leap at the opportunity at making some money from legal claims.  

Without a doubt it is going to affect the way I work in the future.

  • Like 1

Share this post


Link to post
Share on other sites
22 minutes ago, Inchiquin said:

So all photographs that show identifiable people, whether taken in a public place or not, render us liable to prosecution under the DPA unless we either obtain consent from every person in the picture or blur all the faces.

 

This effectively kills most photography stone dead, does it not?

 

Alan

 

'Therefore if a photographer takes a photograph of an identifiable natural person in a public space and the same photograph is published, the law and its underlying principles will apply....'

 

'If, due to the restricted circumstances of the shot, the photographer is not a realistic position to obtain the consent and would still like to use the photograph for purposes falling outside the household exemption, this Office recommends the blurring of the face as a possible approach to render the individual unidentifiable....'

 

'Where the photographer fails to obtain the consent and forges ahead with the publication, the same photographer may be subject to action (depending on the nature of the case) by this Office if a complaint is lodged or may even face a civil claim for compensation from the individual(s) concerned....'

 

It is going to have a big effect on what we photograph - like it or not.  

 

 

Share this post


Link to post
Share on other sites

Not sure if this has to do with the above but at another agency I had a picture yesterday of a donkey on a generic field rejected for a lack of property release. 

 

Are we heading down a road where anytime we shoot in public there's a risk of breaking some wide-reaching and broad piece(s) of legislation(s)? I'm starting to think there's more money to be made going into "photography law" practice than trying to create images. 

Share this post


Link to post
Share on other sites
1 hour ago, Gordon Scammell said:

whereas ‘personal data’ is defined as any data which relates to an identified or an identifiable natural person. Therefore if a photographer takes a photograph of an identifiable natural person in a public space and the same photograph is published, the law and its underlying principles will apply.

 

Has any reliable definition of "indentifiable" been produced? Identifiable to whom?  I could see an argument that even a picture taken from behind - e.g. a street scene with somebody walking away from the camera - that person might try to claim that because they recognise themselves, and they have not given consent for that picture to be published, their rights have been infringed.

 

Sigh - I think I'll stick to inanimate objects, animals and landscapes without people in them!!

Share this post


Link to post
Share on other sites
13 minutes ago, Richard Laidler said:

Sigh - I think I'll stick to inanimate objects, animals and landscapes without people in them!!

I'll probably do the same, but I wonder: is this different than the Data Protection Act that has been around for 20 years in Britain and a little longer on the Continent? Has anyone been sued under it?

Share this post


Link to post
Share on other sites

I have been trying to establish the credentials of this piece and its publication date. It does not seem to have come from the UK Information Commissioner's Office but from the Maltese data protection authority. I have not yet found similar guidance on the UK site. Case law in the UK suggests that there is no right to privacy in a public place so our usual approach of editorial only for people with no model release still appears to be the correct approach. Bear in mind for ART use a model release is possibly required, it is arguably a commercial not editorial use.

 

So be careful in Malta!

  • Upvote 4

Share this post


Link to post
Share on other sites

Did anybody think to ask where this information comes from, given that Gordon did not provide a link to the source. Well I just did a google search and it turns out it is published by the Oiffce of the Information and Data Protection Commisioner of MALTA. Here is the actual link.

 

Chicken Little or what.

 

Just posted at the same time as Martin.

Edited by MDM
  • Upvote 2

Share this post


Link to post
Share on other sites
Just now, Gina Kelly said:

So, is this applicable only in the UK? I'm not clear what the source is. 

 

It is NOT applicable in UK, Malta!

  • Upvote 1

Share this post


Link to post
Share on other sites

I'm thinking that any photographer who shoots a criminal exiting court now has the capability of having that image pulled by the subject and he/she can seek compensation, because there ain't no way your gonna get a model release.

 

Edit :I now see it applies to Malta :rolleyes:

Edited by Sultanpepa

Share this post


Link to post
Share on other sites

The question I was about to ask.

Just now, Gina Kelly said:

So, is this applicable only in the UK? I'm not clear what the source is. 

No, it's from Malta.

Unfortunately Graham has shot a teddy bear. Our data protection principles are different.

My understanding is that a digital (not film) image of a person is only covered by the DPA if the image is acquired for the purposes of identifying the subject. So, a police surveillance image is; one of a person in the street taken for news or editorial isn't. The question isn't "are they identifiable?"; it's "is the intention to identify them"?

  • Upvote 1

Share this post


Link to post
Share on other sites
3 minutes ago, Sultanpepa said:

I'm thinking that any photographer who shoots a criminal exiting court now has the capability of having that image pulled by the subject and he/she can seek compensation, because there ain't no way your gonna get a model release.

Not in the UK- it's from Malta.

From a reading of that quote, UK law is clearly different.

Phew. False alarm.

Edited by spacecadet

Share this post


Link to post
Share on other sites
1 minute ago, spacecadet said:

Not in the UK- it's from Malta.

Cross posting. Yes I see that now.

Share this post


Link to post
Share on other sites

Perhaps Gordon could report the thread to get it removed, or clarify, before anybody else gets the wrong end of the stick.

Share this post


Link to post
Share on other sites

Since it would be impossible for any photographer to know all the DPA rights of every country in the world, not to mention each individual state, province, district, region, or city, it surely would be up to the publication in that country to know the publication rules and follow them, not the photographer.

 

We have all sold images all over the world.  Do you know the rules and restrictions of all the countries you have sold to?

 

Jill

Share this post


Link to post
Share on other sites
1 minute ago, Jill Morgan said:

Since it would be impossible for any photographer to know all the DPA rights of every country in the world, not to mention each individual state, province, district, region, or city, it surely would be up to the publication in that country to know the publication rules and follow them, not the photographer.

 

We have all sold images all over the world.  Do you know the rules and restrictions of all the countries you have sold to?

 

Jill

Quite so.

Germany has a limited right of personality, but I've had unreleased images of identifiable Germans published in Germany. So publishers know the score there. Anyway as I've always assumed, I think correctly, a photographer has no liability for images properly annotated.

  • Upvote 1

Share this post


Link to post
Share on other sites

We do have DPA regs changes coming in on May 25th in the UK which will certainly have an effect on the things I do outside photography!

Share this post


Link to post
Share on other sites
28 minutes ago, spacecadet said:

Perhaps Gordon could report the thread to get it removed, or clarify, before anybody else gets the wrong end of the stick.

 

It was posted in another photographers forum.  I'm trying to find out more details.  However, another colleague has attended a series of GDPR seminars and has said that it is going to be a game changer.  I suppose that if Brexit occurs then things will change yet again.  In the meantime I am giving a lot more thought to what I photograph.  

 

Share this post


Link to post
Share on other sites

The only connection I have with Malta is I'm friendly with my neighbor's little white dog. 

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now