The recent case of Wood v Commissioner of Police for the Metropolis is discussed in an article by solicitor Nigel Hanson of Foot Anstey solicitors that I think makes interesting reading for photographers.
Essentially the court decided that the use of photography by the police to harass people involved in demonstrations – something I’ve written about on many occasions in the past few years- was a contravention of the right to privacy under Art. 8(1) of the European Convention on Human Rights (ECHR).
But perhaps importantly for street photographers,
Lord Justice Laws said it was clear individuals still have no right to prevent another person politely merely taking their photograph in public.
He said: “It is no surprise that the mere taking of someone’s photograph in a public street has been consistently held to be no interference with privacy. The snapping of the shutter of itself breaches no rights, unless something more is added. Accordingly I conclude that the bare act of taking the pictures, by whoever done, is not of itself capable of engaging Article 8(1) unless there are aggravating circumstances.”
So it would appear that we can go on taking pictures – so long as we do so in a discrete manner, although this does not necessarily mean that we are free to either retain them or publish them.
The police lost the case in part becuase the way that they took pictures was intrusive – I’ve long argued it more to be more a deliberate harrassment than any attempt at providing evidence – but also because they were unable to convince the court of any real public interest to justify their action.
But the judgement seems to imply that if you work – like Cartier-Bresson – in a candid fashion, the ECHR would not affect you, but possibly walking right up to your subjects and blasting them with flash would clearly be an intrusion, as would a persistent following of people or workiing with a pack of photographers.
This all seems pretty sensible to me. Long ago I decided that most people would rather be photographed without their knowledge than have strangers approach them and ask if they can take photographs. There are times when I do both of these things, but generally working without permission is more likely to produce interesting pictures. I always agree if strangers ask if they may photograph me (it seems only fair as I’m a photographer), but frankly I’m happier if they just get on and do it without asking me – so long as they don’t disturb me too much. Probably I’m rather more likely to notice if they do so, but like most of the public I prefer to ignore it.
But what the judgement also made clear (if I interpret Mr Hanson correctly) was that to retain and publish pictures taken without permission there has to be a valid argument that it is in the public interest.
I’m not quite sure what this might mean legally, but I have my own views on what the moral position is, at least so far as my own work is concerned.
The first question I always ask is to try and put myself in the position of the persons in my picture – would I find the way that I have portrayed them objectionable? It’s too easy to catch moments when people look ridiculous or show something they would not want to show.
Secondly, and more difficult, does the picture have something worth saying about who we are and how we live – the human condition. This perhaps sounds more pretentious than I mean it to be, but what I’m not interested in are pictures that simply show how clever the photographer is (something I find only too common in much street photography), and what I hope to produce are pictures that have something to say about life. I think that this is something that we can clearly see, for example, in at least most of the pictures of Cartier-Bresson, and something that a court might also be persuaded was in the public interest.
I hope I’m not being too optimistic, but despite the fact that the judgement found that the particular photography being carried out was outside the law, it seems to me that as photographers we can take something positive from it.