Privacy laws revisited

[John Mitchell]

This topic has been discussed in the past. However, in light of the liability changes in the new contract, I thought it might be worth taking another look at privacy laws, especially when it comes to taking photos of people without their consent (e.g. street photography) and having identifiable people in images. Here in Canada, the laws are fairly complex, and they vary somewhat from province to province, even from city to city. Here is what the laws look like in BC, where I live.

 

What are they like where you are?

 

Do you plan on making any changes to where and how you photograph people?

 

 

 

 

Edited May 29, 2021 by John Mitchell

[meanderingemu]

Being on a provincial border, i actually have to deal with 2 sets of rules (which are available at same link at yours)

 

 

Ontario.  

 

Privacy laws do not protect people's likeliness so images of people in public places are allowed.  There is still some risk on civil court if someone can prove publication did damages.  I have read of some cases but most are of images on private ground.

 

Quebec

 

Human Rights Code grants all humans the right to their private life, and this one is extremely large on the protection of individual likeliness usage.  Pretty much a no go except the usual Politician, celebrity and newsworthy event- highly doubt the typical weather images we see in UK would qualify though weather is probably the biggest news items for most. 

 

 

so except for birds, I stay on Ontario side. 

 

 

 

[JaniMarkus Hasa]

Taking images in public places is always allowed. A public place is one that everyone has access to. This covers places like train and bus stations, streets, parks, public areas of shopping malls, libraries, public service facilities, hospital lobbies and areas open to the public. Taking pictures of individual people is also allowed.

 

The right to take images is based on the Finnish Constitution law. It is considered a part of free speech.

 

Images may also be published if they do not contain anything offensive and are not published in an offensive context. Publishing an image must not infringe on a person's honor or privacy - you can't publish images of person with his/her pants down or passed out drunk on a park bench. 

[John Mitchell]

1 hour ago, meanderingemu said:

Being on a provincial border, i actually have to deal with 2 sets of rules (which are available at same link at yours)

 

 

Ontario.  

 

Privacy laws do not protect people's likeliness so images of people in public places are allowed.  There is still some risk on civil court if someone can prove publication did damages.  I have read of some cases but most are of images on private ground.

 

Quebec

 

Human Rights Code grants all humans the right to their private life, and this one is extremely large on the protection of individual likeliness usage.  Pretty much a no go except the usual Politician, celebrity and newsworthy event- highly doubt the typical weather images we see in UK would qualify though weather is probably the biggest news items for most. 

 

 

so except for birds, I stay on Ontario side. 

 

 

 

 

Je me souviens...

 

These days, I'm making more effort to disguise people's identities in images. I'm also planning on going through my collection and deleting a lot of my candid people shots, many of which I actually like. They don't license anyway. Sadly, I think the days of doing traditional -- and carefree -- candid street photography and then submitting the resulting images as "stock" are coming to end.

 

News photos are of course another matter. I'm not a news photographer, so I can't really comment. However, I'm continually surprised at many of the images that get published in the British press. They wouldn't fly in Canada. I guess we're a boring lot.

 

Luckily, the Grosbeaks are smart enough to ignore provincial borders, so you shouldn't run out of subjects any time soon. 🕊️

 

 

Edited May 29, 2021 by John Mitchell

[John Mitchell]

43 minutes ago, JaniMarkus Hasa said:

Taking images in public places is always allowed. A public place is one that everyone has access to. This covers places like train and bus stations, streets, parks, public areas of shopping malls, libraries, public service facilities, hospital lobbies and areas open to the public. Taking pictures of individual people is also allowed.

 

The right to take images is based on the Finnish Constitution law. It is considered a part of free speech.

 

Images may also be published if they do not contain anything offensive and are not published in an offensive context. Publishing an image must not infringe on a person's honor or privacy - you can't publish images of person with his/her pants down or passed out drunk on a park bench. 

 

Interesting. How is "offensive" defined, though? It's an open term. There's no saying what a person featured in a candid image might find offensive.

 

For instance, an overweight person in an image might be oversensitive and think that the photographer was making fun of his or her appearance. There are all kinds of other examples.

[Michael Ventura]

37 minutes ago, John Mitchell said:

 

Interesting. How is "offensive" defined, though? It's an open term. There's no saying what a person featured in a candid image might find offensive.

 

For instance, an overweight person in an image might be oversensitive and think that the photographer was making fun of his or her appearance. There are all kinds of other examples.

 

I suppose a court would have to decide that.  We can't control what a caption or article associated with one of our photos, says.  So I would think it is more on the publisher if someone is represented in an offensive manner.  As a hypothetical, you take a photo of a young woman in public, with no release, but it is used in an editorial article about teen pregnancies...the girl in the photo may have a case.  But I would think that this would be on the publisher since the photo was marked as "no release" and nowhere did you caption that she was pregnant.

[John Mitchell]

46 minutes ago, Michael Ventura said:

 

I suppose a court would have to decide that.  We can't control what a caption or article associated with one of our photos, says.  So I would think it is more on the publisher if someone is represented in an offensive manner.  As a hypothetical, you take a photo of a young woman in public, with no release, but it is used in an editorial article about teen pregnancies...the girl in the photo may have a case.  But I would think that this would be on the publisher since the photo was marked as "no release" and nowhere did you caption that she was pregnant.

 

That's a good example. However, there are cases when it might not be on the publisher. How about if I refer to someone as being "old" in a caption, and they take offense even if they are old? Even using the term "senior" might upset someone. After all, at what age does a person become a senior, 55+, 65+, 70+? The official age varies in different places. I'm being picky, but the new contract opens up some dangerous possibilities by the sounds of it.

[Michael Ventura]

Well here in the U.S., anyone can sue anyone for anything.  It’s a matter of, will a lawyer take the case, will the court take the case. For your example, a judge or jury would have to find that the person was really “injured” by the photo and description.

 

A photographer friend told me a story a long while ago about a woman suing a national U.S. magazine because they published a photo of her without a release.  So this woman was photographed in a public square in Puerto Rico, performing either a song or dance.  Turns out she is a professional model in mainland U.S. and saw the magazine.  She figured that she makes her living being photographed that she should be compensated.  The photographer and magazine won the case but still had to get lawyers involved and that alone can be costly.

[MizBrown]

16 minutes ago, Michael Ventura said:

Well here in the U.S., anyone can sue anyone for anything.  It’s a matter of, will a lawyer take the case, will the court take the case. For your example, a judge or jury would have to find that the person was really “injured” by the photo and description.

 

A photographer friend told me a story a long while ago about a woman suing a national U.S. magazine because they published a photo of her without a release.  So this woman was photographed in a public square in Puerto Rico, performing either a song or dance.  Turns out she is a professional model in mainland U.S. and saw the magazine.  She figured that she makes her living being photographed that she should be compensated.  The photographer and magazine won the case but still had to get lawyers involved and that alone can be costly.

 

In the US, all it takes is a lawyer willing to take the case on contingency for the cost to the complainant being far lower than the cost to the defendant.  A number of cases are settled out of court with non-disclosure agreements because of this.

[Michael Ventura]

1 minute ago, MizBrown said:

 

In the US, all it takes is a lawyer willing to take the case on contingency for the cost to the complainant being far lower than the cost to the defendant.  A number of cases are settled out of court with non-disclosure agreements because of this.

Very true

[meanderingemu]

one thing i always wonder: we all know as a visitor we are bound by the laws of a country, as i often take editorial shots of tourist, are tourists protected by the laws of a country?

 

 

if i take a picture of a Canadian in France, can they realistically take me to French court ?

[Bill Brooks]

Public attitudes are changing more in line with the Quebec judgment where a street photographer was sued by his human subject for publishing her image in a gallery exhibition of his work. The street photographer lost the case up to the supreme court, even though the photograph was taken in a public place.

 

"Le droit à l’image

In a landmark 1996 decision Éditions vice-versa inc. c. Aubry, the Quebec Court of Appeal concluded that the very act of publishing a picture of someone without their consent could justify compensation – even if there was nothing inherently wrong or intimate about the pictures at issue. This case involved a photographer who had published a photograph of a woman without her consent, while she was in a public place. The Supreme Court of Canada in Aubry c. Éditions Vice-Versa inc. confirmed the Court of Appeal decision, and concluded that this aspect of privacy, known as the right to one’s image (“le droit à l’image”), is specifically protected under Quebec law."

 

Here is a recent confrontation in the USA. Uploading an image on Alamy for sale could be considered publishing the image. The photographer would be the publisher, and the publisher is responsible, right?

 

https://petapixel.com/2021/05/26/woman-confronts-creep-photog-in-tiktok-video-draws-backlash/

 

In Canada TV and newspapers are starting to use out of focus images for sensitive uses like obesity, children at play, patients in Covid ICUs.

 

For practical purposes photographs of people who are in the news, published as real news, is fast becoming the only safe street photography featuring people.

[MizBrown]

1 hour ago, Bill Brooks said:

Public attitudes are changing more in line with the Quebec judgment where a street photographer was sued by his human subject for publishing her image in a gallery exhibition of his work. The street photographer lost the case up to the supreme court, even though the photograph was taken in a public place.

 

"Le droit à l’image

In a landmark 1996 decision Éditions vice-versa inc. c. Aubry, the Quebec Court of Appeal concluded that the very act of publishing a picture of someone without their consent could justify compensation – even if there was nothing inherently wrong or intimate about the pictures at issue. This case involved a photographer who had published a photograph of a woman without her consent, while she was in a public place. The Supreme Court of Canada in Aubry c. Éditions Vice-Versa inc. confirmed the Court of Appeal decision, and concluded that this aspect of privacy, known as the right to one’s image (“le droit à l’image”), is specifically protected under Quebec law."

 

Here is a recent confrontation in the USA. Uploading an image on Alamy for sale could be considered publishing the image. The photographer would be the publisher, and the publisher is responsible, right?

 

https://petapixel.com/2021/05/26/woman-confronts-creep-photog-in-tiktok-video-draws-backlash/

 

In Canada TV and newspapers are starting to use out of focus images for sensitive uses like obesity, children at play, patients in Covid ICUs.

 

For practical purposes photographs of people who are in the news, published as real news, is fast becoming the only safe street photography featuring people.

 

It pays to find out what the laws are in the areas where you're photographing.    Also, never assume that someone won't see a book or magazine wherever in the world. 

 

This is interesting and perhaps part of Alamy wants to defend itself against: https://www.pixsy.com/the-10-most-famous-copyright-cases-in-photography/

[John Mitchell]

4 hours ago, Bill Brooks said:

For practical purposes photographs of people who are in the news, published as real news, is fast becoming the only safe street photography featuring people.

 

I fear that Bill is correct here.

 

I knew someone here in Vancouver who got very angry when she spied her teenage daughter in an image accompanying a story in a local newspaper. She complained, but I'm not sure how far she took it.

 

 

Edited May 30, 2021 by John Mitchell

[Harry Harrison]

6 hours ago, John Mitchell said:

How about if I refer to someone as being "old" in a caption, and they take offense even if they are old? Even using the term "senior" might upset someone.

'Senior' isn't a term I'd really come across before I joined Alamy, certainly in the UK it's not widely used in everyday conversation but I suppose it must be in the US & Canada. It may be used in advertising, those impossibly attractive elderly (sorry) couples enjoying a cocktail on the deck of a cruise liner. It's a euphemism I suppose, I just hope people searching for pictures use it as well. Then there's 'fat', well, let's not go there.

[Russell Watkins]

2 hours ago, Harry Harrison said:

'Senior' isn't a term I'd really come across before I joined Alamy, certainly in the UK it's not widely used in everyday conversation but I suppose it must be in the US & Canada. It may be used in advertising, those impossibly attractive elderly (sorry) couples enjoying a cocktail on the deck of a cruise liner. It's a euphemism I suppose, I just hope people searching for pictures use it as well. Then there's 'fat', well, let's not go there.

 

The term "Senior Citizen" was common parlance when I was growing up in South Wales 40-odd years ago. I suppose it started falling out of favour at the same time that "Geriatrics" and "Geriatrician" did, terms that could also be seen as slightly derogatory.

Edited May 30, 2021 by Russell Watkins

[Harry Harrison]

2 hours ago, Russell Watkins said:

The term "Senior Citizen" was common parlance when I was growing up in South Wales 40-odd years ago. I suppose it started falling out of favour at the same time that "Geriatrics" and "Geriatrician" did, terms that could also be seen as slightly derogatory.

Yes, 'Senior Citizen' I suppose, but not a 'Senior'.  I've only got one picture where that might be relevant but I do feel uncomfortable including terms such as 'old' or 'elderly', just as in life I would probably refer to 'that lady over there' rather than 'that woman over there'. However looking at AoA it's clear that people do search for 'old man' etc. so I suppose it's our responsibility to try and reflect how people search rather than how one would describe someone in normal conversation. I copped out with mine I think.

[Jansos]

We really have opened up a can of worms - let's just hope there are no litigious worms out there! 😉

[John Mitchell]

9 hours ago, Harry Harrison said:

Yes, 'Senior Citizen' I suppose, but not a 'Senior'.  I've only got one picture where that might be relevant but I do feel uncomfortable including terms such as 'old' or 'elderly', just as in life I would probably refer to 'that lady over there' rather than 'that woman over there'. However looking at AoA it's clear that people do search for 'old man' etc. so I suppose it's our responsibility to try and reflect how people search rather than how one would describe someone in normal conversation. I copped out with mine I think.

 

The most commonly used labels in Canada are "seniors" and "senior citizens." Also becoming more popular is "elders," probably borrowed from First Nations (indigenous) cultures, which actually revere old age. It says something about our youth-obsessed society if people (like me) feel insulted if someone refers to them as being "old." My generation (I'm a child of the 60's) is as much to blame as anyone else for this situation. 

[meanderingemu]

Most environment seem to have exclusions for "Newsworthy" images.   I wonder if stock agency will have to start addressing how long an image can be on offer.  

 

Image of the BLM rallies will always remain newsworthy so i assume they would have longevity, but for example someone visiting the Free access Tulip festival on opening day can easily be demonstrated as Newsworthy, and the medias seem to have no problems publishing it.  However at some point this is just "Person in Tulip Garden" and may stop fitting the newsworthy definition.