Access and consent in public photography

Difficulties in obtaining literature

I thought it would be appropriate to start this chapter with a foreword, explaining the difficulties I had in obtaining relevant literature for this review. Whilst conducting an initial search for literature, it became quickly apparent that very little other primary research had been conducted on this subject. To confound matters, the only literature that had been conducted was extremely dated. As a result, there was little other material that I would be able to compare my research to. The one piece of research that was directly relevant was a chapter in Image Ethics by Lisa Henderson – Access and consent in public photography. This chapter will receive a thorough review in a latter section of this review, as it’s importance as the only other comparable piece of primary research cannot be understated.

The only other papers I found that were comparable in terms of content were legal review papers, usually specific to a particular nation. Both Dunedin and Ludlow’s papers at first glance seemed to be similar in content to my working title (Dunedin 2007; Ludlow 2005). Upon closer inspection though, their applicability was limited. Both dealt with photography as a form of privacy invasion, however, the large bulk of both papers was review of the legislation covering these issues in New Zealand and Australia respectively. Whilst some the content was arguably valuable, I felt that discussing legal legalisation of countries outside of the UK would be irrelevant in the context of my interviews.

As there is little to no comparable primary research to base this review upon, I have instead aimed to provide a comprehensive overview of the relevant issues that may occur during the interview process. These include, an overview of the laws in the UK that govern photographers rights, A social history of amateur photography and the advent of the Kodak and specific review of Henderson’s Access and Consent in Public Photography.

The Law

The law is fundamental to many of the arguments covered in this dissertation. The UK law in particular, covers many aspects of photographer’s rights and details exactly when and how they may intrude upon the privacy of others. Despite issues such as the intrusion of privacy, are more of a modern product of legal development, their creation can be attributed in part to the onset popularisation of amateur photography as a result of the hand camera. In this aspect, it can be argued that photography is on the forefront of ethical and moral issues surrounding privacy and the protection of intellectual property. In particular, this section will focus on the laws surrounding photography of private property, invasion of privacy and harassment, and photography of children. There exists much material on copyright issues pertaining to photography. I have purposefully excluded these issues from this review because I felt it was less relevant to the overall purpose of the dissertation as compared to the issues involved in actually performing the act of taking the photograph.

Private property

As a rule of thumb, photographers do have the right to take photographs of private property from public spaces (Macpherson 2009). Photographers also have the right to take photographs on private property provided they have the owner’s permission to do so. Conversely however, any owner of private property has the right to refuse access to a property upon entry, and this includes taking photographs of said property. Macpherson notes that, in addition, photography is restricted upon entry to other areas of private property that some might consider public, including “museums, stately homes, for example, and by most concert venues”

In addition, the use of a of a long lens to take to an picture of a private property, such as a person’s residence, is an invasion of privacy if the photograph is taken without the owner’s consent, even if it is taken in a public space (Macpherson 2009).

Exceptions in Public Spaces

The UK has two exceptions, where photography is prohibited in openly public spaces. These specifically, include Trafalgar Square and Parliament Square in London. Photography in these areas is prohibited from commercial photography, for example, it could not be used in business adverting or for selling prints (Greater London Authority 2002). Non-commercial photography is not prohibited, for example, tourists taking photographs are unrestricted in their photography in these areas.

Harassment

In general, any harassment of a person is illegal. Obviously this term is extremely broad but photography in certain circumstances can be viewed as harassment. Macpherson notes that “Harassment is essentially behaviour that causes alarm or distress, and it refers to a ‘course of conduct’ not a single incident.” (Macpherson 2009) This means that this behaviour has to be repeated at least twice to count to amount to harassment; however, two separate incidents have the potential to occur in a short period a time, for example, if a person repeatedly tried to photograph of an unwilling subject.

Invasion of Privacy

As it stands, the UK does have laws governing an individual’s privacy. This right to privacy has developed through the interaction of the European Convention on Human Rights with domestic law through the Human Rights Act 1998. This may result in certain prohibitions on the practice of photography. Specifically Article 8 of European Convention on Human Rights gives every individual the right to protect their private family life, correspondence and home from the intrusion of others. Whether this right is directly a result of the Human Rights Act 1998 or is judicially created, is a matter that has been widely discussed (Morgan 2004). Whilst, the right to privacy is protected by Article 8 of the convention, Article 10 detailing freedom of expression, contradicts this right in terms of photography As a result, courts often have to judge each case in terms of its own merits (Human Rights Act 1998). To confound matters, article 8 is in a stage of flux, and laws surrounding the privacy of individuals are often altered, creating the potential for further confusion among both photographers and members of the general public.

When specifically considering the case of photographing in public spaces, the core of the issue lies in whether a person could have a reasonable expectation of privacy, however, the degree to which is asserted is a matter of debate.

Data Protection

Despite there currently not being a case of such, there is still a possibility that photographs may be subject to the Data Protection Act (Data Protection Act 1998). This act monitors and protects all aspects pertaining to personal information. Whilst the act does not specifically mention privacy as a concept, the label of ‘personal information’ can relate to almost any aspect of an individual’s intellectual property, whether this includes their image, is a question that has yet to be clearly stated ,but is a matter that will no doubt be debated in the near future.

Protection of Children

The law protects children in exactly the same way as adults when considering the issues we have already considered in terms of harassment, data protection and invasions of privacy. However, in addition, children are also protected by the child protection act. It is illegal both to take an indecent photograph of a child, or to edit an image in such a way that a photograph becomes indecent. These laws are detailed in the Protection of Children Act (Protection of Children Act 1978).

Macpherson notes that while it is not illegal to take photographs of children under the age of 16 in public places, it may well arouse suspicion from the police and may result in investigation of motives (Macpherson 2009). In addition he notes that other activities and events put on by local councils, such as fairs and school-based events, may well have strict rules about photography of children which can be enforced.

Security

National Security has become an issue of chief importance in the light of recent terrorist activity. One of the most published examples is the fact that is now illegal to transfer or publish a photograph of a police constable, members of the armed forces, or other security related personnel under new counter terrorist legislation (Counter-Terrorism Act 2008). This rule is somewhat moderated by the fact that the accused photograph would have to be of a nature that would prove useful to terrorists. The accused are capable of defending themselves if they manage to provide a reasonable excuse, nevertheless, the focus of this legislation is arguably still a case of ‘guilty before proven innocent.’

This law has been met with considerable resistance, with journalists recently staging a protest against the legalisation at Scotland Yard. In an news article covering the protest, Victoria Bone notes

“That means anyone taking a picture of one of those people could face a fine or a prison sentence of up to 10 years, if a link to terrorism is proved… The law has angered photographers, both professional and amateur, who fear it could exacerbate the harassment they already sometimes face.” (Bone 2009)

A Cultural History Of Amateur Photography

The Advent Of Personality And Privacy

The advent of a formal understanding of privacy is an issue that is central to this entire dissertation. I wanted to examine the advent of privacy as a concept because it is so inextricably linked to many of the issues that arose through my interviews, aiding my latter analysis. Many of the issues pertaining to the evolution of privacy can be found in Mensel’s paper “Kodakers Lying in Wait”: Amateur Photography and the Right of Privacy in New York, 1885 -1915 (Mensel 1991). At first glance of this paper, I was concerned of its potential use because I wanted to focus on the UK, as many of these issues are culturally relative. Despite this, upon further inspection, the concepts the paper produces are universal in their applicability. In addition, many of the issues of privacy do appear to have developed in Victorian New York in a way that is both traceable and easily understood.

The first of Mensel’s key references in the development of privacy is author Warren Susman. Susman has written a wealth of information on the fundamental changes that occurred in American society in the early 20th century. Perhaps the most important of these changes was the shift between being a “culture of character” to a “culture of personality”. In her book ‘Culture as History: The Transformation of American Society in the Twentieth Century’ (Susman 1984) Susman describes how self-awareness developed within society, subtly and yet fundamentally. He argues that for much of the 1800’s that society was defined by the nature of “Character”. Character was defined as form of self-awareness where people examined their own morality. From Susman:

“In the age of self-consciousness, a popular vision of the self defined by the word “character” became fundamental in sustaining and even in shaping the significant forms of the culture. Such a concept filled two important functions. It proposed a method for both mastery and development of the self. In fact, it argued that its kind of self-control was the way to fullest development of the moral significance of self. But it also provided a method of presenting the self to society, offering a standard of conduct that assured interrelationship between the “social” and the “moral.””

This matter of expressing oneself to society was a crucial trigger for a wide reaching social change. For Susman, the advent of character was the first step on the road to society developing personality and consequently, the concept of privacy. Despite these insights, Mensel argues that Susman’s use of words such as ‘character’ and ‘personality’ are inappropriate because such distinction between them was not recognised at that time.

Another key reference that Mensel cites in his paper, is the writing of renowned journalist EL Godkin. Godkin was at the forefront of the development of privacy as a concept and was one of the first to write specifically on the matter. His article in Scirbners magazine ‘The Rights of the Citizen’ was one of the first writings to consider “The right to decide how much knowledge of [an individual’s] own private affairs the public shall have” (Godkin 1890). Godkin saw privacy as “a distinctly modern product, one of luxuries of civilisation”.

Having recognised the advent of privacy as a new phenomenon, Godkin was also conscious of the threats to privacy that the behaviours of modern society represented. He was particularly concerned with the behaviour of the media in intruding people’s personal lives:

“The Chief enemy of privacy in modern life is that interest in other people and their affairs known as curiosity, which in days before newspapers created personal gossip… [A]s long as gossip was oral, is spread, as regarded any one individual, over a very small area, and was confined to the immediate circle of his acquaintances. It did not reach, or but rarely reached, those who knew nothing of him. It did not make his name, or his walk, or his conversation familiar to strangers…”

Godkin’s writings on the issues of privacy and how it may be intruded upon, inspired a strong desire within some sectors of the society, to protect their privacy with legal means. Some social commentators have argued that Godkin’s work was the direct inspiration for Warren and Brandeis’s groundbreaking article, ‘The Right to Privacy’, that argued for privacy to be protected by law (Warren & Brandeis 1890). Ironically , it would appear that Godkin was actually opposed to using the law as a method of protecting privacy. According to Mensel, this was partially due to the fact that a jury in such a trial would be most likely “…be composed of the same ‘depraved’ classes that were responsible for the advent of sensationalist journalism and intrusive photography profitable” (Mensel 1991).

Despite Godkin’s objections, Warren and Brandeis’s article was a huge success. Combining elements from varied and estranged fields of law, they managed to formulate an argument that the law could protect the “thoughts, sentiments and emotions” of the general public (Warren and Brandeis 1890). This issue was especially important to the authors because of the threat generated by “Recent inventions and business methods” These included the new journalism style that was similarly disregarded by Godkin, in addition a previously unconsidered threat in the form of the newly invented Kodak hand camera.

The Social Impact Of The Kodak Camera

Photography, prior to the invention of the hand camera, was a difficult and cumbersome process that was only left to the reserve of a minority of experts. It was certainly not the highly accessible hobby that it became in later years. As Jenkins notes:

“From the time of the introduction of commercial photography in 1839 until the late 1870s, the technical complexities of the photographic process were so great that only professional photographers and a very few avid amateurs chose to pursue the practice. In the 1870s the photographer had, for example, to prepare the photosensitive materials; adjust the camera settings; expose, develop, and fix the glass-plate negative; and print and fix the positive paper copy.” (Jenkins 1975)

This situation changed permanently and dramatically with the invention of the hand camera, invented by George Eastman. This camera used an innovative new technology that used dry plates and allowed for instantaneous exposures. This new technology came to change not only how photographs were taken, but who took them. Perhaps the widest reaching effect of the introduction of the Kodak was to allow members of the public with no little to no previous experience of photography to take acceptable quality pictures. Whilst this may have seen as a positive step in terms of the reputation and esteem of the photographers, the advent of thousands of amateur photographers had the opposite effect. In the late 19th century, in America, prominent newspapers such as The New York Times produced articles on what came to be known as “The Camera Epidemic” (The New York Times 1884). These articles disregarded the mass popularisation of photography to the extent of a labelling it a “national scourge.” Reports written by members of the public of the growing problem of “camera lunatics” appear frequently in letters to the major publishers. A different article in the New York Times (NYT 1884) went as far to liken amateur photographers to the mentally ill:

“it has not occurred to a single medical man that the first noticeable increase in the percentage of lunatics in this country and in England took place about a year after the introduction of dry plate photography… We need search no further to find out why our lunatic asylums are crowded.”

These reports are a potent reminder of the disregard many people felt for the advent of the hand camera at this time. One article detailing Secretary of Treasury, Charles Folger marked as an oddity for having “a most extraordinary fondness for being photographed”, In the same article as the author describes Folger’s picture being taken be describes “..while the camera does it’s deadly work” (NYT 1884)

Examples such as these highlight the public’s distaste for these new amateurs. One particularly violent solution was offered in The Amateur Photographer1885:

“There is but one remedy for the amateur photographer. Put a brick through his camera whenever you suspect he has taken you unawares. And if there is any doubt, give the benefit of it to the brick, not to the camera. The rights of private property, personal liberty, and personal security – birthrights, all of them, of American citizens – are distinctly are distinctly inconsistent with the unlicensed use of the instantaneous process.” (The Amateur Photographer 1885)

Access And Consent In Public Photography – A Review

This essay, written by Lisa Henderson, is essentially a review of an unpublished master’s thesis – Photographing in Public Places: Photography as social interaction that was produced while she was a student at the University of Pennsylvania in 1983. I first encountered this essay while studying a book called Image Ethics: The Moral Rights of Subjects in Photographs, Film, and Television published in 1991, the essay however is also revised and reprinted in a book called The Photographer Reader published in 2003. The gap between these dates was a good initial indication that the essay had occupied a unique niche in terms of describing issues of privacy caused by photography from a social standpoint. Indeed, it is the only comparable piece of literature I have found on the subject. Unfortunately, I was unable to obtain a copy of the original thesis. Thankfully, the essay alone contains a detailed summary of the most pertinent results. This section will review these results so that I may be able to compare the findings of our research during my analysis and conclusions. Henderson’s results are subdivided into three main categories: Settings, Subjects and Strategies. I will purposefully avoid repeating the reference (Henderson 2003), all of the following material is adapted from the most recent version of her essay in The Photography Reader, all statements can be directly attributed to this essay.

Settings

Henderson begins this chapter with four elements that she has defined as being key when considering the setting of photographs: 1) The familiarity of the setting 2) Whether the setting is is considered a “front” or “back” region of a larger area 3) How frequently photographs are taken in the setting and 4) The purpose of the event within the setting.

1. Familiarity, according to Henderson, is key in defining how comfortable a photographer feels taking photographs in a given setting. She notes that familiarity is key because it allows a photographer to achieve a state of “normality” By understanding their subject audiences, photographers can blend into specific cultural settings and make their subjects feel at ease. The language used in this case is interesting. Henderson implies that a state of “normality” is beneficial because photography is an abnormal action.

2. The terms of “front and back” are adapted from theatrical stage language and define a photographer’s route of access. Back regions involve a photographer to imitate the image of a consummate professional going about day-to-day business, they can achieve this by being accompanied by a official such a police officer or by “pretending” to be on official business. Front entrance occurs when an event implies a photographer’s presence is not unusual.

3. Henderson argues that photographers are more comfortable when surrounded by their own kind. A mob has the effect of drawing attention away from the individual, making it easier for a single photographer to achieve “neutrality” in their setting. Again, the language here implies neutrality is beneficial in order to avoid unwanted attention.

4. Again, events where photography is expected, such as press conferences, are easier for photographers because photography is the expected norm at such an event.

Subjects

Henderson introduces this section with what some would argue, is an extremely bold statement: “No group of people is categorically off-limits or of no interest to photographers”. This statement is modified by adding that many different groups at treated differently by photographers, Age, gender ethnicity and social class all require a modification of strategy be it an invitation to take a photography or an act of “intimidation in others”.

Henderson notes that a common subject for many amateur photographers can be found in street performers performing various formal and informal activities. Individuals performing musical, theatrical or other forms of entertainment are ideal according to Henderson, because photography is usually a welcome presence or “flattery” for many street performers who are keen for attention. They also allow the photographers to remain relatively unnoticed among a crowd of stationary observers.

Strategies

Henderson describes a plethora of different strategies in order to gain access to their subjects. These strategies are eased if the photographer shares common characteristics with their subjects, she cites ethnicity, social class and social background as being key in determining the ease at which a photographer can gain access to their subjects. Interestingly, she notes that children are an exception “Photographing children is an exception. Children are thought to be less self-conscious about their appearance and less likely to anticipate the “possible horrors” of photographs and they might appear in publication” This comment is of particular interest because it reflects the culture of the time in which it was written. Indeed children would be considered an exception in photography in recent times, more likely for the fact that they were a subject to be avoided due to possible fear of being labelled a sexual deviant. A mass paranoia about paedophilia was not present in the early 1980’s to the same degree that it is currently.

Henderson describes a variety of different strategies that may be employed to gain access to their subjects. The majority of these involve the photographer assuming a role where he/she can appear as “un-alarming” as possible by either assuming an official role or by blending in with the crowd.

Conclusions

Henderson’s work serves an interesting social insight into the behaviour of photographers. However, there are several factors that would be interesting to have been more informed on. She mentions that this work is based on interviews with 15 ‘photographers’, it becomes clear in the subsequent prose that these photographers consist of a mix of amateurs, professionals and photojournalists, which does seem a wide variety for such a small sample. In many ways, the paper exudes a feeling of disapproval, photographers are seen as taking steps to remain “un-alarming” and seeking to try and gain an appearance of “normality”. Photographers are also seen as adjusting their approach to different social groups by “intimidating” them, although direct quotations or evidence to support this claim is not provided. In many regards, this paper seems to follow the line of the amateur photographer as a 19th century “camera lunatic”. Whilst informative, it does seem somewhat odd that this one-sided approach to the issue remains the only obtainable source on the behaviour of the photographer and their considerations of privacy.