Street Photography, the Internet and the Right to Privacy

[Arjay]

I have a question that has been bugging me for quite some time, but now it has become ever more urgent: How do you handle the right to privacy when you publish your street photographs on the Internet?

Some Background

1. The German magazine Der Spiegel (our equivalent of Time Magazine) is running a cover story on data gathering and brokerage on the internet*. The story goes into a lot of detail and is both fascinating and shocking with its description of the data traces every one of us leaves in the net, and how all those scattered data snippets can be (and are) aggregated by businesses, creating personal profiles that are a lot more telling than the little snippets we believe to be so harmless.
2. In its all-encompassing view, this article would be very interesting for the public in the US too, because it might change public opinion with regard to the lax US legislation on the protection and use of personal data (I wonder when it will be available in English).
3. Facebook and other companies have finalized the development of a face recognition and associated web crawler software that collects photographs all over the net and tags them with the names of the people on the pictures once it has found only a single correlation between a name and a face. This means that even photographs of people that we publish without any name tagging will one day be annotated with the real names of the people pictured, thus breaching their right to privacy.
4. In a 2005 lawsuit, Erno Nussenzweig of Union City, New Jersey sued NY photographer Philip Lorca diCorcia to take down a street portrait of his from an art show. Nussenzweig lost the case on the grounds that Lorca diCorcia had been publishing art. Presently, such a case might be ruled similarly in Europe, but I wonder how long the situation will remain like that.

I wonder if future rulings of similar cases might not turn out differently because such a publication might involuntarily drag the affected individual into the public against its will - with lots of additional data about its personality and biography.

What can we do to protect the people we photograph?

I think it is time to develop some kind of awareness that we as amateur photographers have a certain responsibility for the people that appear on our photographs. We will not do ourselves a service if we help to get our subjects into any kind of trouble. This would certainly contribute to taint our reputation as photographers in general, reenforcing the prejudices many people already have that pictures could be harmful for the people on the photographs. And we don't want that, do we?

The problem is that there doesn't yet seem to be an established code of ethics on this matter. Anywhere. On the other hand, if we don't worry about such a code, we'll soon not be welcome any more in the public.

Here's what I propose to do in the mean time:

• Never leave EXIF metadata in the files you publish on the net - especially on big photography portals such as Flickr, Photobucket etc.
• Never publish the location where you took the picture, possibly even try to exclude hints from which one could easily deduce where the shot had been taken.
• Never publish when you took your picture.
• If possible, do not publish a picture immediately after you took it.

How do you feel about this problem, and what measures/rules would you suggest ?


* Der Spiegel, issue 02/2011, 'Google, Facebook & Co - das Milliardengeschäft mit den Kundendaten'' (translation: The billion Euro business of consumer data'), pp. 114. BTW, this copy has killer cover page graphics - I'll try to get a large print of those graphics, they're highly decorative.

 

[paulfish4570]

i will have to think upon this. intriguing.

 

[Gumby]

I don't have to think. I just don't post pics to the internet and avoid the whole contraversy.

 

[GSNfan]

My question is how could picture of someone taken randomly on the street end up harming them? Unless its a degrading picture and posted for ridicule, something which I'm sure no respectable photographer would do.

When people walk on the street without any disguise they have agreed to show their face in public, hence indicating they have no fear of people seeing their face, their clothing and even hear their voice (in case they speak). They're also constantly filmed on CCTV cameras etc.

I'm not for posting photos of people on the internet if in anyway it degrades them, other than that I see no harm in it.

 

[nightfly]

I complete disagree.

My take is that if you are in public, you are fair game at least according to my understanding of US law on this.

People willingly give up so much personal data on the internet with tools such as Facebook which they know is being aggregated and sold to advertisers (or should know based on Facebook's valuation) that I simply can't take seriously anyone's privacy concerns over a street photo from an unknown photographer (me) which will likely never be seen by any sort of mass audience.

If ever confronted and asked to refrain from using a photograph, I would decide to comply on a case by case basis, knowing the law is on my side but would certainly take into account any serious concerns.

Shoot first, ask questions later.

 

[Roger Hicks]

My question is how could picture of someone taken randomly on the street end up harming them? Unless its a degrading picture and posted for ridicule, something which I'm sure no respectable photographer would do.

When people walk on the street without any disguise they have agreed to show their face in public, hence indicating they have no fear of people seeing their face, their clothing and even hear their voice (in case they speak). They're also constantly filmed on CCTV cameras etc.

I'm not for posting photos of people on the internet if in anyway it degrades them, other than that I see no harm in it.

Seconded. I give my implicit consent, and assume that all others do the same.

To assume otherwise seems to me paranoid. People seeing the picture don't know the identities the people in it are; they seldom know exactly where they were; the same people almost certainly won't be in the same place now; and in many cases, they aren't even the same person any more. Even if they did know, what are they going to do about it?

For example, 30+ years ago I took a picture of three teenage girls on Christmas Steps in Bristol. There were three niches (the sort you put plaster saints in) and they were empty and accessible. I'd never met the girls before (I was photographing the Chapel of the Three Kings of Cologne at the top); they said "Take our photo"; and I did. The niches were their idea. How can anyone be harmed by this? The more so as they may be grandmothers by now.

I don't buy "Things were different 30+ years ago." Nor do I buy "The internet makes a difference." I'm pretty sure that picture is in one of my books. The only difference between then and now lies in a climate of fear.

Cheers,

R.

 

[paulfish4570]

privacy and free speech laws vary so much from country to country, culture to culture. i can only go on what i experience in this country. if you are in public, you are fair game. if the photographer is working on public property (which includes private property used by the public), he is protected by the first amendment.
everyone is protected - or not - by the photographer's personal moral/ethical code.

 

[furcafe]

Precisely. Perhaps the situation is different in Germany, but people in public in the U.S. don't have a right to privacy in their image. Many states, like California & NY, individuals may have a right of publicity, but that's different because it relates to the commercial use of their image or likeness.

My question is how could picture of someone taken randomly on the street end up harming them? Unless its a degrading picture and posted for ridicule, something which I'm sure no respectable photographer would do.

When people walk on the street without any disguise they have agreed to show their face in public, hence indicating they have no fear of people seeing their face, their clothing and even hear their voice (in case they speak). They're also constantly filmed on CCTV cameras etc.

I'm not for posting photos of people on the internet if in anyway it degrades them, other than that I see no harm in it.

 

[Ezzie]

I'm rather apprehensive about posting pictures where the subject can unambiguously be identified, and I never post any portraits of my children, ever. But I understand why others may prefer to post whatever. Internet makes things easier, but to be honest ever since the invention of photography anyone can end up being exposed to the public in one way or the other without their knowledge or prior consent. Internet doesn't change that, it just makes it easier and more accessible.

 

[ndnik]

Sometimes and someplaces, this is not a matter of opinion. Privacy law in Germany, as an example, is very different from the US/UK.

According to German law, you own the rights to your own image. This applies in public as well as in private. The law explicitly forbids taking a recognizable image of a person without the person's consent. Note that taking the image is forbidden, not just publishing it. The only exemptions the law allows for are in "public gatherings", like demonstrations, fairs, etc (vaguely defined in the text), people "of public interest" may be photographed (politicians, for example), and for "images of artistic interest". So, in contrast to US/UK laws, German law recognizes that people have a right to privacy everywhere and anytime.

Street photography is, by this law, illegal, even if the images are never published. You as a street photographer will have to prove in court that the images are "art" if you are ever challenged. In essence, a crap shoot. It does not matter whether the images are flattering, damaging, degrading, uplifiting, or anything else.

In practice, though, the law vague and weak because it never defines what it means by "public interest", "recognizable", and "art". It is essentially unenforcable, although cases are brought to court quite often, mostly by celebrities trying to have images taken down or seeking damages from tabloids.

- N.

 

[Andy Kibber]

For example, 30+ years ago I took a picture of three teenage girls on Christmas Steps in Bristol. There were three niches (the sort you put plaster saints in) and they were empty and accessible. I'd never met the girls before (I was photographing the Chapel of the Three Kings of Cologne at the top); they said "Take our photo"; and I did. The niches were their idea. How can anyone be harmed by this? The more so as they may be grandmothers by now.

The girls asked you to take their photograph? Surely that's an explict waiver of privacy rights (real or imagined).

 

[umcelinho]

Roger, in the other hand this lack of privacy could prove itself interesting in some cases. Imagine using a face recognition engine to find the girls and send them the picture. If I were one of them I think it would be magical.

Some people might actually enjoy finding themselves in beautiful or meaningful pictures. for instance, a candid shot of a couple holding hands on the beach and it was their first date and now they are married for 30 years, it was a special moment for them captured by a total stranger and that they didn't have any record of.

Not that I think it's overall a great thing, I believe privacy is very important, but considering how things are moving, one might use this for positive reasons.

 

[John Thawley]

Is it so far-fetched to think that one day (someday) your participation on the inter-web-net etc. will actually be considered "appearing in public?"

My work is accomplished by flying to a location. Maybe I do this a dozen times per yer. Beyond that I communicate with friends, associates, clients and potential clients via online communications tools. Sure... I still go out when I 'm at home. But I don't really do a lot of interaction "in public" per se'.

I get up in the morning and go to work "online." I meet, I greet, I chat, I interact.

The only thing I do keep in check is all of these apps and devices that want to use "my current location." I don't like anyone casually knowing where I am or where I'm going or have been.

Not to appear cavalier about it all, but given the current direction of Facebook, forums, etc. etc. t's pretty much public... IMO.

 

[robert blu]

In Italy the law states that you cannot publish pictures of everyone without their explicit permission. This is valid for papers, shows or internet. I believe )not sure) that this is or will be valid for all europe. Most of people do it anyway. But the question from Arjay is serious and his suggestions (no exif data, place or date) seems me the least photographer can do. I have no problem if anyone takes a picture of me, but I would not like to be harassed by companies trying to sell me this or that ...
robert

 

[furcafe]

That is an interesting contrast to Anglo-American law, closer to what (little) I understand of the situation in France & some other civil law countries.

Sometimes and someplaces, this is not a matter of opinion. Privacy law in Germany, as an example, is very different from the US/UK.

According to German law, you own the rights to your own image. This applies in public as well as in private. The law explicitly forbids taking a recognizable image of a person without the person's consent. Note that taking the image is forbidden, not just publishing it. The only exemptions the law allows for are in "public gatherings", like demonstrations, fairs, etc (vaguely defined in the text), people "of public interest" may be photographed (politicians, for example), and for "images of artistic interest". So, in contrast to US/UK laws, German law recognizes that people have a right to privacy everywhere and anytime.

Street photography is, by this law, illegal, even if the images are never published. You as a street photographer will have to prove in court that the images are "art" if you are ever challenged. In essence, a crap shoot. It does not matter whether the images are flattering, damaging, degrading, uplifiting, or anything else.

In practice, though, the law vague and weak because it never defines what it means by "public interest", "recognizable", and "art". It is essentially unenforcable, although cases are brought to court quite often, mostly by celebrities trying to have images taken down or seeking damages from tabloids.

- N.

 

[Pickett Wilson]

One day we wake up and realize that the wall of laws we've built around ourselves to protect ourselves has become a prison from which we can't escape. Modern times.

 

[Ezzie]

Is it so far-fetched to think that one day (someday) your participation on the inter-web-net etc. will actually be considered "appearing in public?"

My work is accomplished by flying to a location. Maybe I do this a dozen times per yer. Beyond that I communicate with friends, associates, clients and potential clients via online communications tools. Sure... I still go out when I 'm at home. But I don't really do a lot of interaction "in public" per se'.

I get up in the morning and go to work "online." I meet, I greet, I chat, I interact.

The only thing I do keep in check is all of these apps and devices that want to use "my current location." I don't like anyone casually knowing where I am or where I'm going or have been.

Not to appear cavalier about it all, but given the current direction of Facebook, forums, etc. etc. t's pretty much public... IMO.

My thoughs too. The more you interact on the internet the more you are undermining any rights you may have intended to protect your privacy.

 

[Arjay]

Thank you for all your replies!

I am not challenging the concept that anybody who is out and about in the public is forfeiting his right to privacy. That's a fact, although legislation in different countries indeed uses different definitions for this right.

The reason why I started this thread is quite different: Can we be sure that our right to privacy remains intact after all those data snippets (which by themselves appear harmless and whose collection apparently has not been illegal either) have been aggregated? Isn't the sum of these data different than their individual components? And - hasn't aggregatiing changed their relevance?

Assuming that the aggregate sum of these data (images with attributed names, biographic data, and - say - citations of those folks from internet forum discussions about events of present-day history, such as political opinions e.g. about what happened in Tucson Arizona) can constitute a fairly telling profile of a person, don't we as photographers have a certain responsibility to not act as blind purveyors of data for someone else's purposes?

You might consider yourself lucky to live in a country that claims it is free. Opposing examples are not too far away: Hungary has just passed a law abolishing the freedom of press (we don't even need to look to China)!

Personal profiles can be bought today - in Europe, in the US, and almost anywhere on the world. Those who buy them do not care whether the data they bought are legal or not, as long as they are useful. The ones who sell then don't care what their customers will use them for.

So, I'm not talking about legitimacy - I'm talking about ethics.

 

[Gumby]

they said "Take our photo"; and I did. The niches were their idea. How can anyone be harmed by this?

In your example the difference isn't the internet or a climate of fear... the difference is that they asked you to take their picture. A lot of the problems seem to be when John Q. Public does not explicitely say either "Take my paicture" or "Don't take my picture".

 

[oftheherd]

... but I would not like to be harassed by companies trying to sell me this or that ...
robert

That was what jumped out at me, and what I thought was the OP's main point. How will information, whether faces, locations, whatever, be used? There is no reason to collect such data unless someone sees a profit from it. Businesses will use it, perhaps to the dis-service of the person photographed. That can be anything from advertising to denial of services.

Governments and crooks won't be far behind. I don't mean to sound paranoid, but power in government often corrupts people's judgement. Crooks have already been seen to use GPS data to feel safe to burglarize the home of someone who is posting from a location distant to their home.

Clearly, in my mind at least, the question deserves some serious thought.