Live life through a lens, keeping clear of a life sentence
Taking pictures is a delightful pastime, but in the age when snapping a photo of a policeman can land you in jail, and as plane spotters the world over have learned, it can also be a risky business. Media specialist Richard Findlay of Tods Murray investigates how to keep the issue in focus.
A man’s got to have a hobby and one of mine is photography. Since a teenager I have been fascinated by the camera’s ability to record a moment in time for posterity and this has given me hours of pleasure reliving memories. So a ‘snapper’ I have been for some forty years and for most of that period I was just that. I took ‘snaps’ – you know the ones where flash has produced ‘red eye’ or where a tree seems to grow out of the subject’s head or their legs appear cut off. Better camera equipment bought over the years did produce improvements of course, but the frustration of not being able to create a David Bailey or Harry Benson masterpiece eventually got the better of me and this year I enrolled to take the Open University’s online digital photography course. This was one of the most rewarding things I have done in my life as it put the bedrock of knowledge in place by teaching me composition and the principles of capturing light, focus and exposure.
Having completed the course, my technical, visual and creative skills were now more acutely developed so I set about finding my own particular style. Events and people seemed to capture my interest, perhaps because my day job required me to attend so many. So whether it be a highland games, rugby match, Edinburgh Military Tattoo, Jazz Festival or 50th Birthday Party, the chances are you might now see me lurking in the corner, lens in hand ready to shoot.
Now, it was at a highland games in Bathgate this summer that I experienced for the first time a photographer’s brush with the heavy hand of the law. A fellow photographer had just taken a picture of the ‘Dinky Donuts’ van whereupon two policemen pounced on him requesting an ID and conducted an interrogation. Apparently Dinky Donuts was parked beside a police vehicle and the officers thought that my now visibly shaken friend was taking pictures for terrorist purposes. It was then that I had cause to reflect on where I stood in the eyes of the law as regards my activities which till then I had assumed to be immune from reproach.
Gone are the days when the amateur photographer feels able to pick up their camera, step outside and capture images that inspire them at will. The general freedom to take photographs, if it did ever exist, has suffered attack from all sides not least in the government’s response to the threat of terrorism, the increasing need to protect children against paedophilia, a certain misapprehension surrounding the obligations under the Data Protection Act 1998 (DPA) and the UK’s obligation under the ECHR to protect the individual’s private and family life.
The lack of a clear and stand-alone law of photography in the UK has led to confusion surrounding what an amateur photographer can and cannot do; providing ample opportunity for erroneous attacks on photographers who simply wish to take a few snaps. Until a better understanding of the rights of photographers is fostered among the public and security enforcers the best solution is for the individual photographer to be aware of his/ her own rights in order for them to be able to confidently carry out their hobby with a feeling of pride and fulfilment rather than shame. If forewarned is forearmed then hopefully the following research will bear fruit for the ‘snappers’ among us.
1. Public Places
As a very general statement, shooting from a public place is not prohibited in the UK. The exceptions to this rule are the bylaws requiring a permit for shooting in Trafalgar Square and some Royal Parks. This exception is limited to prevent photography in those areas for commercial purposes, so tourist ‘snaps’ would be perfectly acceptable. The general freedom to photograph public places is further circumscribed in the specific instances outlined below.
A restriction on photography in public places may arise in relation to highways, footpaths and cycles paths as well as roads where passage is being obstructed. Whether an obstruction is being caused will depend on the reasonableness or otherwise of the photographers behaviour, the surrounding circumstances and the inconvenience caused. While the police do have powers of arrest in these circumstances, verbal warnings and requests are the norm.
3. National Security
Since the collapse of the Twin Towers and the attack on the London transport system security officials have become ever more vigilant. That vigilance has placed its beady eye on the local snapper: the ‘War on Terror’ has now spawned a ‘War on Photography’. There is no factual basis for this suspicion. No known terrorist has ever been caught with his Kodak snapping away at their target. Rather, the fear is fed by sensationalism in films and the media. We have been conditioned to see James Bond figures at every turn, a digital camera neatly disguised as a Mont Blanc fountain pen.
However, the vigilance of law enforcement officials is backed up by various pieces of legislation. The Official Secrets Act 1911 makes it an offence to take a photograph of a prohibited place where this might be useful to an enemy. While the list of prohibited places is wide and varied, the additional requirement that it be useful to an enemy restricts the type of situation caught. There is an element of mens rea in the offence as well in that the photograph must have been taken for a purpose prejudicial to the safety or interests of the State.
Under the Terrorism Act 2000 it is an offence to take or possess a photograph containing information likely to be useful to a person committing or preparing to commit an act of terrorism. The Act equips the police with powers to stop, search and detain anyone they suspect of committing an offence under the Act. While it would be prudent in such cases to co-operate with the police or face a night of lamentations in your local cells, bear in mind that the police must have a basis for their suspicion.
4. Private Places
Provided you have permission to be on private property there is no general restriction on taking photographs. This is subject to the right of the owner of the property to impose any conditions they see fit on entry. Therefore however tempting it may be to take a snap of your friend crowd surfing at the next gig it would more than likely violate the conditions of entry.
If a person enters private property without permission or they have permission but then violate the entry conditions, they are trespassing. The Scottish civil wrong of trespass has been around since 1865, the remedies being interdict and damages (only where physical damage has been caused). In addition there are specific criminal offences which have been created under various statutes. The Land Reform (Scotland) Act 2003 makes various inroads into the law of trespass, in Scotland at least, by providing new rights of access over all land for specific purposes (mainly recreational and educational). These rights must be exercised responsibly and where an individual fails to act responsibly the provisions of the 1865 Act and the law of trespass will kick in. Furthermore, access rights do not extend to buildings, structures or the land immediately surrounding them nor do they extend to land developed for a particular recreational purpose e.g. a golf course.
Certain property bears specific protection against trespass such as railways, aerodromes, military bases and explosives factories - any photographer who enters without permission risks being arrested.
Taking photographs of someone could amount to harassment if the behaviour complained of causes another person alarm or distress and amounts to a course of conduct (i.e. occurs on at least 2 occasions). In a landmark case, the actress Sienna Miller, recently used the anti-harassment legislation south of the border to successfully sue photographers following an ‘intolerable’ campaign by the paparazzi photographers. In November this year, Big Pictures UK Limited and its founder Darryn Lyons offered Miller a total of £53,000 plus legal costs in settlement of her dual claims of harassment and invasion of privacy. While not a binding court ruling, it may well encourage other celebrities to pursue a similar crusade under the anti-harassment legislation.
6. Invasion of Privacy
While the UK does not recognise a right of privacy per se it has signed up to the ECHR which provides everyone the right to respect for his/her private and family life. Article 8 has spawned a substantial body of UK case law, notably the Naomi Campbell and JK Rowling cases, which have led some commentators to suggest that a UK privacy law has arrived by the backdoor. Article 8 is now engaged wherever there is a reasonable expectation of privacy. In the Miller case noted above, under the terms of the High Court order it was held that Miller would have a reasonable expectation of privacy in the area outside of her home or at the home of her family, and office blocks or buildings not opened to the public. In turn, Miller agreed that she would not have any such reasonable expectation when she was entering or exiting a bar, restaurant or nightclub, was on a public footpath or highway -and not visibly upset or distressed- or attending a “red carpet” event.
Photography of children has become a sensitive and indeed contentious issue. The media latch onto stories of parents attending school nativity plays being prohibited from taking photos of their children for the family album. What gives the school the right to insist on such draconian measures? Schools are private property and can impose whatever conditions they see fit on entry. This issue was highlighted in a press release earlier this month by the ICO (Information Commissioner’s Office – 8 December 2008): the ICO encourage a common sense approach to taking photographs at school nativity plays. The ICO has also issued guidance for schools and local authorities which gives advice on taking photographs in educational institutions, and whether this must comply with the DPA. Specifically, photographs taken for the family photo album are exempt from the restrictions imposed by the DPA. Citing the DPA in order to prevent parents taking photos is, according to the press release, a ‘data protection duck out’. If taken for official use, provisions of the DPA do apply and obtaining consent of the child’s parents would be the safest route.
While there are various child protection laws in place to protect children they do not and should not render taking perfectly decent pictures of children illegal. I would reiterate the approach of the ICO but extend it beyond the parameters of the nativity play – a common sense approach is required. Clearly a photo of a child with a gratuitous sexual implication is indecent both in terms of the Protection of Children Act 1978 and public morality generally. A photo of your five year old dressed as one of the Three Wise Men is not.
8. Other Protected Areas
Wildlife is protected under the Wildlife and Countryside Act 1981 and it is an offence to disturb some species when they are at or near their nesting places. This provision extends to taking photos of them. Taking photos of bank notes is also an offence unless permission has been granted by the issuing bank. Photographing proceedings in a courtroom, the court building or the ‘precincts of the court’ is a criminal offence.
Rights in the image once the photo is taken:
Copyright exists in original works of an artistic nature so care is needed when including any such works in a photograph when used for commercial purposes. However no infringement is made if the inclusion is incidental – though what is regarded as ‘incidental’ can be a matter of debate. In France, images of the Eiffel Tower have long been in the public domain but it wasn’t until the installation of a new lighting display in 2003 (the design being subject to copyright protection) that problems arose. The result was controversial: contemporary photos of the Tower, taken at night, and subsequently published became illegal.
When photographing architecture or objects protected by copyright it is prudent to obtain a release form. If portrait photography is your specialisation it is similarly wise to obtain a model release form if the image taken is to be used for commercial exploitation. This is not a legal requirement in the UK as there is no copyright in a person’s features, body or appearance. But failure to have one would render the image unmarketable and/or result in legal wrangling.
Photography plays a vital role in documenting changes to our society and our evolving times. A picture does indeed tell a thousand words: what would the reports of the blood bath in China have been without the accompanying photograph of the student standing alone in Tiananmen Square in the face of tanks? The evocative pictures of the Mark Edwards exhibition, Hard Rain, on climate change, pollution and human rights abuses was sent to every prime minister and president along with an open letter requesting that they outline their policies on the problems illustrated in the book. The exhibition has proved a phenomenal success and succeeded in highlighting problems of a global nature in a way that a letter or words on their own simply could not do. With this in mind, the amateur photographer should feel free to take photos of images that interest him – whether that be pictures of the ‘Dinky Donuts’ van at the Bathgate highland games or photographs of your child opening their first present on Christmas morning.