Photographer guilty of “disorderly behaviour causing offense” for street photo

[lynnb]

Story via Reddit and Imaging-Resource. A Perth, Australia, photographer who took a picture of a woman during New Years Eve celebrations on the street has been found guilty by a magistrate of "Disorderly behavior causing offense by taking photographs without consent". The woman's boyfriend had confronted the photographer, snatched his iphone and taken it to a nearby police officer. He was taken into custody "for his own protection" and then charged.

The magistrate acknowledged that it was lawful for the photographer to take photos of people in public places and CCTV images confirmed he was not acting suspiciously at the time.

However... and this is where it becomes scarey for us photographers. Some members of the public did object to him taking photos without permission and one photo in particular, even though he did not try to disguise what he was doing and the subject was quite happy to be in public dressed in the manner that she was. As a result his behavior did cause offense and so could be considered disorderly, so (he was) found guilty as charged.
- Julian Tennant on Facebook, via Reddit. Julian was with his friend Al (the man later convicted) during the incident.

The magistrate's comments left the door open for legal clarification via appeal, however the report indicates this is unlikely due to lack of funds. So a precedent in West Australian courts has now been set. Other States may now feel inclined to follow.

The magistrate's decision reinforces the community belief that they have the right not to be offended by street photography. The report does not mention whether the magistrate questioned if it was reasonable for the complainant to feel offended in the first place. If so, I think that's a serious oversight - it's perhaps the central question: after all, a person could claim to be offended after the fact if s/he decided s/he didn't like the photographer; or if s/he demanded the photographer show or delete the images and was refused. Most people don't realise that some of us use film - or even that film still exists!

The recent PetaPixel article "Beware the Coming War Against Photography" also discusses this issue. Confrontational street photography like this report is also not making it easy to convince people that street photography can be an innocuous pastime or project.

Personally I find this judgment disturbing. Any person with a bullying state of mind or a chip on the shoulder can now feel more assured the courts will back them up. Sooner or later, we will all come across someone who finds street photography offensive. Even if we approach it with gentle intention.

The irony is, almost everyone with a cell phone is now a street photographer during public events like New Years Eve. If a complaint was made about every picture taken with a cell phone during these events, the police and courts would soon start to question what is offensive and what is not.

 

[Sejanus.Aelianus]

Personally I find this judgment disturbing. Any person with a bullying state of mind or a chip on the shoulder can now feel more assured the courts will back them up.

Can't see this one flying in the UK, although the quote about "Some members of the public did object to him taking photos without permission" sounds close enough to "behaviour likely to cause a breach of the peace" to be a candidate for a police caution.

The bottom line is that we all have to coexist with our fellow citizens, regardless of what the law says otherwise. What's more, the law has to evolve with our changes in perception.

I have a picture of some colleagues playing around during a lunch break. One young woman is riding piggy back on a chap, while a second young man delivers a smack to her bottom. When I took it, fifteen years ago, it would have been considered harmless horseplay, nowadays it could give rise to a serious charge.

I think the photographer, in the case you quoted, might have been better advised to move away from the group who objected to the photography and looked for a different subject. At the least, perhaps, he should have been more circumspect?

 

[Contarama]

"Some members of the public did object to him taking photos without permission" sounds close enough to "behaviour likely to cause a breach of the peace" to be a candidate for a police caution.

The bottom line is that we all have to coexist with our fellow citizens, regardless of what the law says otherwise. What's more, the law has to evolve with our changes in perception.

Makes me wonder what the "general public" was doing that was interesting enough to photograph and why some objected to photographs being taken. Geez I wonder how many of those "girls gone wild" wished they wouldn't have signed a release? Maybe something even more salacious was involved in this particular circumstance.

Even more interesting to me in light of this "court ruling" is something that Xpanded said in another recent thread...

"I think the simple answers are alienation, lack of personal courage and disbelief."

Perhaps personal responsibility for ones actions should be included...which means if you or your drunk girlfriend does something really stupid and get photographed while doing it than tough crap...it happened you brought it upon yourself dimwit.

Funny how those with governmental power can fly a drone over somewhere anywhere and take pictures to their heart's delight...amongst other nefarious activities.

 

[lynnb]

Hard to know what he should've done without more detail on the circumstances. From what I gather from the report the complaint was made after the boyfriend noticed he'd taken the photograph i.e. no prior warning there would be a problem. The article does mention that the people seemed inebriated - and therefore more likely to be impulsive, aggressive and emotional - understandably, being NYE!

There are occasional media reports of problem public binge-drinking and street fights in Perth, so it wouldn't surprise me that this could happen. All the more reason for the photographer to be, as you said, more circumspect.

 

[Al Patterson]

Coming war against photography? Does the person writing this crap for Petapixel actually READ?

The war is well under way, and we are not winning...

 

[brusby]

By that magistrate's reasoning, conduct that is otherwise legal, like taking photos in a public place, can become illegal just by virtue of having someone take offense.

If that's the case, I'd advise the photographer to claim he's offended by the magistrate's ruling and the complainant's (woman who was photographed) complaint. According to the reasoning employed in the initial case both the magistrate and the complainant would then be guilty of criminal conduct.

Sounds absurd I'll agree, but no more absurd than the logic behind the magistrate's original ruling.

 

[Contarama]

...taking photos in a public place, can become illegal just by virtue of having someone take offense.

Political correctness knows no bounds!

Is that like an oxymoron or something??? 🙂

 

[Keith]

Someone suggested in a thread a while ago that Australia being the 'nanny state' it is, will quite likely be one of the first countries in the world to take away our rights to photograph freely in public places.

It's obviously been a long time since 'Eureka Stockade' and Australians in general seem quite willing to succumb to dumb authority!

 

[mfunnell]

By that magistrate's reasoning, conduct that is otherwise legal, like taking photos in a public place, can become illegal just by virtue of having someone take offense.

If that's the case, I'd advise the photographer to claim he's offended by the magistrate's ruling and the complainant's (woman who was photographed) complaint. According to the reasoning employed in the initial case both the magistrate and the complainant would then be guilty of criminal conduct.

Sounds absurd I'll agree, but no more absurd than the logic behind the magistrate's original ruling.

I'd agree except for one small problem - you might have logic and common sense on your side, but the magistrate has power on his side, so he wins. The only thing that can be done about this is to appeal the matter in the hope that a real judge will overrule the decision, which is quite likely as long as there's no actually-legislated absurdity involved. But you'd best be sure of winning, because calling a magistrate's ruling "absurd" then losing will land you in hot water - perhaps officially or, worse, unofficially where there are many ways for revenge to be taken for damaged pride. (I've suffered from the latter, on a matter entirely unrelated to photography, and can assure you that exposing embarrassing mistakes by a magistrate leads to very substantial pain.)

...Mike

 

[brusby]

I completely agree Mike. I often use exaggerated examples like this just to clarify issues and to make a point, not seriously suggesting them as the proper course of action.

That's what appeals courts are for -- to correct the many nonsensical rulings of magistrates and trial courts. Unfortunately appeals are costly in time and money.

 

[tjh]

Many years ago, my wife and I took a plane from Sydney to Cairns. I had a camera bag and a very small backpack but was told I could carry only one onto the plane. So, I removed the contents of the backpack and put those items into the camera bag, leaving a small empty backpack sack, just a little larger than I could fit in my closed hand. I was told that the backpack sack had to be checked since I started off with two items and was only allowed to take one of those on the plane. It was such a hilarious application of "rules", especially when the tiny backpack came off the checked luggage along with proper luggage.

Moral of the story - carry a large enough camera bag!

Tom

 

[Keith]

How the world sees us ... well Monty Python at least! 😀

 

[Contarama]

Australians in general seem quite willing to succumb to dumb authority!

Americans have been thinking, acting, and voting en masse for this type of thing for a long time now...it is beginning to catch up to us and the rest of the world now!

 

[mfunnell]

I completely agree Mike. I often use exaggerated examples like this just to clarify issues and to make a point, not seriously suggesting them as the proper course of action.

That's what appeals courts are for -- to correct the many nonsensical rulings of magistrates and trial courts. Unfortunately appeals are costly in time and money.

I quite take your point, and I believe the photographer in this case is probably being very sensible by not further entangling themselves in the legal system (which, I guess, was the point of my cautionary tale). The only 'good' side of the story is that it's unlikely a magistrate's ruling (especially an absurd one) will be taken as a precedent. The bad side, of course, is the "chilling effect" left by the uncertainty over what a magistrate might do in the absence of precedent from a higher court or from clearly applicable black-letter law.

...Mike

 

[zuiko85]

Sounds like a job for a 'flash mob' of a few hundred photographers descending on this this municipality and photographing just everything in public.

And then take "strong offense" at any action the police take. Make sure the national news media covers this event.

 

[Keith]

Sounds like a job for a 'flash mob' of a few hundred photographers descending on this this municipality and photographing just everything in public.

And then take "strong offense" at any action the police take. Make sure the national news media covers this event.

Civil disobedience is a great way to get the attention directed to this sort of nonsense IMO.

 

[mugent]

In the UK, walking around in public, in the nude, is legal. If someone is 'offended' by it, then it becomes an offence. I guess street photography is similar, it's only offensive if someone is offended by it.
I think it comes down to the details, for example, was the subjects privacy invaded?

Some girls will walk the streets in skirts, going 'commando', nothing wrong with that, but there is a line between taking that girls photo (fine), and sticking your camera between her legs (not fine), and it's up to magistrates to draw where that line is, when you have humans involved, mistakes will be made.

BTW, I'm not suggesting the photographer did any of these things, from the article, his behaviour seems perfectly acceptable.

 

[Contarama]

Some girls will walk the streets in skirts, going 'commando', nothing wrong with that

I wholeheartedly agree...until my ten year old son says dad look at that squirrel!!! LOL

I wouldn't make a very good magistrate I think.

Sorry I couldn't resist. 🙂

 

[rfaspen]

Want to take "street photographs"? Invest in a CCD security system. Obviously, these are innocuous and your Leica (or favorite rangefinder) is a weapon of unethical malice.

I am absolutely floored by public opinion. In the US, in cities, people are completely aware that they are perpetually being "filmed" while in public by so-called security cameras in nearly every public space. These cameras are not owned by some upstanding government agency, but by private entities, just like your average street photog. Obviously, its the act of being "out there" and actively composing your photographs that is criminal. I wonder if it would be more acceptable if I installed a CCD security camera on a helmet, and walked around with it. I would, of course, mount the camera so that the lens pointed in the direction I face. Actually, isn't that the premise for these "Go Pro Hero" cameras? Funny that an extreme sports camera is most appropriate for street photography now.

 

[lynnb]

Some time ago - a few years I think - I noticed a proposal to the national camera clubs association (or whatever its called) in Australia, to produce identity cards for camera club members to carry. This was in response to rent-a-cops and other safety and security apparatchiks harassing members. The ID cards would verify that they are registered members of a camera club and are undertaking photography in public places as a hobby.

I wrote to them asking if they really wanted to support the perception that some sort of authority was required just to take photographs in public places. I never received a reply.

Australia's wealth was built on the sheep industry. Seems it had a lasting effect.