I think you need to try to see it from a different perspective - that of the person on the other side of the camera, and of the reasonable expectations of members of the public that people should not be exposed in a spotlight unless they agree to it.
In a sense, I think the question being discussed is what the law should be, and where it may be going.
It may be that in the past, photographers have taken it to be their right to photograph whatever presents itself in public, and to publish the photos. The photographers' preferred view was that as long as the intent was "artistic" or "editorial" and not commercial, it was ok to publish, whether the person knew about it or consented.
But try to look at things from the perspective of some ordinary person, not a celebrity, public figure or participant in an activity that is in a spotlight, who finds their photo published in a mass circulation publication, in a way that they are clearly identifiable. No, make that identified. You were walking on the sidealk downtown, and now there you are on the front page of the daily newspaper, name and all.
The law usually tends to reflect what people think is fair and reasonable. I think protection of the right to be in public and remain essentially private, in terms of not having one's image published in a way that results in "identifiable exposure", is a right the the law will (and should) increasingly protect.
I suspect that most people would be inclined to view publication of such a photo without consent as an invasion of a reasonable expectation of privacy, even though the person was in a "public place". As well, I would think that most people would be prepared to set aside the photographer's expectation, based on past practice, that he or she has a right to publish without the consent of the subject any image they make of people in public places, even if the publication results in people being subjected to unwelcome publicity.
Matthew said:
I entirely disagree with the notion that photographing someone in a public place, whether or not they are considered a public persona, going about their daily business is an invasion of privacy in any way whatsoever. No personal information is included in the photograph, nothing that gives away any genuinely intimate details about the person that any passerby could not glean at a glance. Using this sort of image in an advertising context without expressed permission would be unacceptable, but in an editorial or artisitic context I find the idea that it should be illegal to publish without some sort of contract in place to be entirely batty. The entire body of work produced by Henry Cartier Bresson would likely be illegal if this was the case. Ditto the work of Garry Winogrand, Alex Webb, Mitch Epstein, David Alan Harvey, Raghubir Singh. (I could continue listing names for an entire page.) A great deal of photography since the invention of the Leica would not have been created legally. It may not be polite to engage your subject in certain situations, but it is a dangerous dangerous thing to be legislating politeness.
I accept that there may be some public situations or subject matter (such as described above involving mobile phone cameras and skirts) which are exception to this and would constitute an unreasonable intrusion into someone's privacy, however.
Then consider the fact that this entire discussion wouldn't even be happening if the photo was made in a third world country where there is no money and therefore no interest in pursuing such cases. If we find it acceptable to photograph the downtrodden without gaining permission shouldn't we also be subject to that attitude?
