Street Photography: Privacy, Ethics and the Law

Since this website is intended to cover the many aspects of candid street photography, I thought it would be a good idea to write a post about the rights and most importantly the so-called (self-imposed) “ethics” of street shooting. Many have written on the subject. So this is hardly new. It may become a subject that I’ll cover more again in future posts. I’m trying to cover with a wide brush in this blog post, so do keep in mind that the information in this article is of a general nature. It does not in any way constitute formal legal advice, and should not be relied on as such. At the bottom of this blog I have put together a list of TIPS for you in avoiding confrontations. If you have anything to add, please feel free to leave me a comment. *This blog post will be updated now and again.

I’m not here to dictate what you should or shouldn’t do in street photography. There really are few “rules”, if any, in street photography. I may make suggestions, and will tell you my own personal feelings and approach to the craft. Part of the goal as the candid street photographer is to remain unobtrusive, not intrusive. These are personal ethics--rules arrived at by and used by an individual. An individual's “ethics” are, for that person, also rules of behavior. These happen to be mine, they may not be yours. Street photography isn't just about candid photos of people on the street. It is the representation of the photographer as it is also the representation of the human condition. It is giving future generations the ability to see what life was like at a certain time. A slice of real life. That includes all the beauty, the good, the bad, and the ugly sides of society. Get ready for criticism in your chosen art-form. There will be no escaping from that.

Let’s begin by saying that there is no crime in public photography. At least not in Ontario Canada, where I happen to be located. Actually photography is mentioned in very few Canadian laws. In many countries and regions around the world you are perfectly within your right as a photographer to take photographs in public streets and outdoor public spaces. Many countries rely heavily on tourism and every tourist carries a camera, so it becomes problematic to enforce such restrictions by law. But not all countries celebrate these freedoms. There are destinations where you would think are fine to photograph openly in the public, when in fact it may not be. Some countries are becoming more strict about this very subject, and in others it is forbidden altogether. Even if it is legal, you should be aware and sensitive to local traditions and customs. Photojournalists and social documentary photographer's doing work abroad do their research before travelling, the same principle applies to street photographers all over the world. Always know your rights as a photographer and be aware of the do’s and don’ts of that particular region and culture. It always pays to know what you can and cannot photograph (and who you can and cannot photograph).

With social media and smartphones and modern camera devices the citizens of the world capture photos and videos all the time, posting them for the world to see. 24/7. These are the photographers and tourists with cameras in hand that you CAN see, who are taking pictures out in the open. Consider also that because everyone has a camera today, it very well might keep democracy in check. Arab Spring comes to mind. Photo stills and videos of police shootings. Rallies and protests. Political movements. We are receiving real-time images from around the world on these kinds of events. I think for the most part, this is a good thing.

Consider also for a moment as we move throughout the city during our normal routines all the hundreds of video surveillance cameras taking shots of YOU and me every single second, minute, and hour of the day -- the hidden cameras you cannot see. It is the lens of the surveillance state that we should fear, not the lens of the artist. The point is that privacy is hardly anything we can expect in today’s modern world. At least not in public spaces.

Street Photography in a Paranoid time — "By walking out of our homes we essentially consent to be filmed and watched and photographed by any number of entities; at least a street photographer is making photos out of some interest in art or their fellow human being." – UtahN8 (Nathaniel) https://www.dpreview.com/forums/thread/3653949

Does this give photographers carte blanche to snap away in the streets without a thought or care? Well, for the most part, generally speaking, yes. At least in most of Canada and the United States. Morally this might be another question altogether. I’m not about to judge fellow street photographers who don’t put self-imposed limits on their approach to street photography. Although I do have my own personal set of “rules” I like to adhere to, I do not believe there should be any enforced or defined limits -- still, there are some things to consider.

For personal, editorial, documentary and art making, absolutely you are within your right to photograph in public spaces. Are there some caveats to be aware of? You bet. For example if you come across flashing lights, sirens, emergency vehicles. Police and crime scene tape. If it is a crime scene in the street, be aware you could be accused of interfering with a police investigation if you decide to take out your camera and start making photographs. Unless you are a reporter or photojournalist with media credentials, I wouldn’t do it. How about this one, which I just discovered recently... Did you know that you are NOT allowed to publish night time photos of the Eiffel Tower? You can make and take all the daytime shots you want, and publish them on your social media platforms and your website, but you cannot publish night shots without permission. This is because the Eiffel Tower light show makes this iconic structure a work of art. As a work of art, it has different copyright rules.

Where else are you not allowed to photograph? Airports. Many museums and art galleries. Even many national parks have restrictions that you should be aware of before venturing with your camera gear. Some require the photographer to request special permission and apply for specific access. Regardless of your photographic intent, be it for personal, art, or commercial purposes, this also goes for video and film productions.

What other places should you NOT photograph? Consider shopping malls, government buildings, embassies, military bases/buildings/installations, and nuclear power plants just to name a few. Even if these places are within view of general public spaces, they are generally off-limits to photographers. Also many bridges and tunnels are no go zones. This is a small list and by no means a comprehensive one, and you may be surprised of the many other places you cannot photograph, even in view from public spaces. Like, do not photograph into windows of buildings… that’s just common sense.

For Canadians and photographer’s visiting Canada, I highly recommend this website as a good resource for photography and the law. http://ambientlight.ca/laws/ There is some great legal stuff in there… plus a printable PDF based on some of the more important laws which I always keep with me when I’m shooting in the streets of Canadian cities.

The Right To Photograph Someone In Public

Now let’s get to the real purpose of this blog post. This isn’t always a comfortable conversation for many photographers. But it is one that we should have, and have often. Photographing random people in the public streets without asking permission first is growing in controversy. It is becoming a real question of the rights of the photographer vs. the rights of the people being photographed. A question of space and privacy. I see street photography as an art form, a means of documenting city life and society at a particular place and time. There are others who see street photography as an outright violation of their personal sovereignty. With that in mind, I try to make good judgement calls as a photographer. Have good common sense in my photographic decision making.

We must keep in mind that there are differences between "right" to privacy and "expectation of" privacy. However, it does still come down to one single point, and that is, you cannot truly expect privacy when out in public. Period. This isn’t to say that it's okay to record private conversations. Or intrude on personal space. I believe discretion and good manners goes a long way. As does being unobtrusive vs. intrusive and recognizing there are grey areas in between.

But there are those who think street photography is a violation of their privacy, and they also believe it is (or should be) against the law. As mentioned above, I live in a democracy where street photography is legal. Where there is no presumed privacy in a public space. Some don’t understand the law and will argue otherwise. We need to educate them. I live in a free country, I’d like it to remain so. Others live in countries where candid street photography is not legal, where the penalties are outrageous. France, for example, has a concept of "right to one's image" or "droit a l'image". Even here at home in the Province of Quebec there are certain restrictions. These did not exist just a few years ago. Something is going on to spur these new laws. I think a lot of it is fear based.

There is a campaign going on in the United Stated called the “Ask First Campaign” http://www.askfirstcampaign.org. It was born out of a San Francisco event called The Folsom Street Fair, an annual BDSM and fetish event held every September that caps off Leather Pride Week. This is an event that takes place in the public streets. The idea for the Ask First Campaign was started when creator Maxine Holloway found herself being groped and prodded by complete strangers who definitely didn’t have permission to do any of those things. To me, that sounds like sexual assault. This has nothing to do with candid street photography. Holloway created the Ask First Campaign, which passes out stickers with the slogan written on them and promotes the idea of consent in public places. Consent to what? Sexual harassment? What has this to do with street photography? Well, apparently some photographer’s have been known to sneak shots up skirts, down shirts and worse. I hate this. More than you can imagine. Not only is it disgusting, it is illegal, and it gives street photographer’s a bad rep. I think Maxine Halloway has a real point to make. However, as I’ve mentioned, this event takes place in the public street and not in a private venue. So she has little legal ground to stand preventing the street photographer from doing their work, but she has solid ground when it comes to pervert people who think it is okay to snap pictures under skirts and down womens shirts. It is offensive. It is not okay. And it is also not anywhere in the realm of street photography as an art-form. At least where I live it would be considered illegal.

Here is Maxine Halloway’s response when Sfist reached out for her comment on the “Ask First Campaign”. You can find it here: http://sfist.com/2016/09/28/folsom_street_fair_ask_first_campai.php

“I think photographer’s that have this type of response are entitled and obtuse. Consent is important and is about more than just sex. As a photographer myself, I believe there are three things we need to consider when thinking about consent and the camera:

The “legal right” right to photograph someone in public is irrelevant. One only has to look to the recent Brock Turner Case to understand that the law does not always allocate what is right, just, or consensual.
Street photography has changed since the days of Gary Winnogrand taking photos on the streets of NYC in the 60’s. The internet, cell phone cameras, and facial recognition technology is a game changer when it comes to ethics and standards of street photography. The repercussions of someone being identified on the internet at the Folsom Street Fair versus being identified at a music festival, and where that image can travel, deserves a more nuanced conversation. As culture changes, the ‘how and why’ we capture people’s image is necessary discourse.
The Ask First Campaign is also addressing the fact that nowadays everyone has a camera in their hands. At events like the Folsom Street Fair, people are using cameras in offending ways: SLR’s and cell phones are repeatedly forced into people’s personal space when taking “up-skirt” photos and snapping close-up pictures of people’s breasts.

These three things are not separate, and are all indicative of people believing they are owed or have the right to someone’s body. This is eerily similar to how our society excuses sexual violence and rape culture at large. I have very little empathy or tolerance for that type of ‘entitlement’ rational, weather it is about someone’s body or image.”

Holloway has extended the Ask First campaign to include what she calls “consensual photography.” She’s even published a set of guidelines you can view here on her Instagram https://www.instagram.com/p/BKwVDrqB3n4/ -- you be the judge.

The problem I have with this guideline is that it goes beyond just the Folsom Street Fair BDSM event -- it suggests this to be a guide for “consensual photography” anywhere in the public realm. The characterization of photographers capturing real-life moments candidly cannot be criticized with one large single brush stroke. However, I do believe, just as any photojournalist or social documentary photographer who works with an editorial board, street photographers must also exercise a degree of discretion in our work, what we photograph, and what we share. It is in the purpose, and the why. The heart and soul, the art and the story being told through our pictures. If we are to consider the specifics such as the Folsom Street Fair, which is a BDSM event, then I think we as photographers must take discretion seriously. This isn’t the centre town square on a normal uneventful day, this is a special event that for certain communities (LGBT, BDSM, leather scenes etc), that San Francisco has defined itself by, to do and be that are not generally accepted or safe to do elsewhere. These are the kinds of images that are NSFW, they can also create problems for the people that are recognizable if shared publicly in social media, website albums and the like. Just because you *can* go take a picture of someone in chaps getting whipped publicly and post it online, which could result in someone losing their job or being outed more widely than they'd like, doesn’t mean you should. Even though this is a public event taking place in the public street, we as street photographers, social documentary photographers, humanist photographers, are challenged in a very big way with this dilemma. Are we within our legal rights to photograph? Yes. Generally speaking. But the moral and ethical challenges are there and we must be aware of that.

When does a photograph shot in the public streets cross the line into a violation of privacy? I defy anybody to answer that question.

I have photographed the public streets during Toronto Pride for many years. I have documented the gay scenes in and around Toronto for a long time. I have images that are most certainly NSFW, and many are viewable online, in my 500px gallery. All of them are candids, none of them are “consensual”, all shot with artististic intent and integrity. These are a series of photographs with a narrative. Although I assume it is rare, there are those out there who intend harm. Who photograph and post images with malicious intent. And it is these people who have given street photographers a bad rep, and why movements like the “Ask First Campaign” exist.

Values and Behaviour

Just because something may be legal, is it acceptable? Photographing homeless people for example. Unless this is an ongoing photo project assignment and you ask for permission, to otherwise exploit those who are the most vulnerable is to me something best to avoid. I believe street photographer’s ought to question their motivations, their approach and their work. Real-life is full of pain and misery. How you go about documenting it while maintaining dignity to both your subject and the art of street photography is a tough matter to wrestle. All I can say is stay true to yourself, follow your heart. Do it and THEM justice. Otherwise don’t do it at all.

Are you a sneaker? A peeper? Do you use a long lens like a hunter or sniper? Do you shove a short wide lens and flash in people’s faces, getting right into their personal space, well, there may be consequences as a result. Personally, I find all of that quite distasteful. Bordering on creepy if you ask me. If you’re trying to be provocative and lack empathy in your process, just be prepared because that just might come to bite you in the ass.

How about photographing children? There’s another polarizing subject. What was okay 25 years ago may be a problem for street photographer’s today. A highly subjective issue for which there is no clear and concise answer. Personally I am uncomfortable photographing kids candidly, mostly because I do not want the confrontation with parents. Unfortunately we live in paranoid times, thanks to an overly suspicious public, a media who bates and sensationalizes everything, and governments that often overreact in the name of national security.

Be aware of your environment. Be streetwise.

I have been photographing the streets for many many years. Having spent a great deal of time in sketchy areas of cities, I try to keep my wits about me with a keen sense of awareness to my surroundings. Over time one develops a gut intuition, spidey senses if you will -- the ability to sense imminent danger, a kind of 'sixth sense'. Is getting punched in the face worth getting the shot? The fast answer for me is a resounding NO! My aim is to not get noticed, so for the most part I don’t get noticed. However, if I am noticed I don’t sheepishly walk away or act like I’m trying to get away with something. I remain confident. I smile and acknowledge my subject. Or look beyond them in a certain way as if I were not photographing them at all, but instead photographing something else. If you are approached and questioned, be honest. Tell them what you are doing and why. Show them the photo. Show them your portfolio on your smartphone. Offer a business card. Be polite. Manners go a long way.

If a person whose image is a significant component of the final work and who is also identifiable in the shot asks me not to use it, or even asks me to delete the image, I will explain why I would like to use it. If the person then continues to ask that I delete it, I do so. It isn’t worth the argument. If they allow me to proceed with its use, I thank them very much and offer to provide a small electronic version via email if they should so wish. I think this is good protocol. It’s good manners.

So what ARE your intentions as a candid street photographer?

Why are you doing what you do? If you are approaching a situation where you start questioning yourself whether or not you “should” photograph someone - step back for a moment and think. I try to avoid making photos or sharing photos of people in embarrassing or compromising positions. If your conscience is telling you something, if you are feeling guilty, perhaps you need to either ask for permission first or just move on. Or just get over it.

There are many techniques to staying fairly invisible as a street photographer. This is something I will cover in another blog post. But for this topic I’d like you to ask yourself this, “Am I an honourable street photographer?” What narrative are you trying to capture? What’s your motivation? It becomes a question of empathy, morals and ethics. Do your photographs make people look their worst or best? Does it matter? Personally I do my best to put myself in others shoes. Because I shoot reality, real-life in the moment candids, I want to be extra sensitive. I try not to make photos which put a person, that stranger, in a bad light. I’m not telling you what to do, or how to be. You can be classy or you can be trashy. The choice is yours as a street photographer. I try to use good judgement. If I feel the subject-person is portrayed in a negative light by the image, then I do not use or display the image. Again, this can be quite subjective. What I might deem negative may be just fine for others.

Another point I’d like to bring up is the photographer who operates their camera like a gun machine firing off 30 shots of someone. Is that reasonable? We’re not talking about event shooting here (which I also do professionally). If you’re waiting for a particular scene to unfold because you like the environment, great. It is good to be a curious photographer, while it’s also important to retain respect too. It’s a choice of personal style. Consider taking one shot. Maybe two and moving on. Often I shoot while on the move, rarely stopping for long. Or even at all.

Here’s a question I get asked ALL the time

Can you sell a photo taken in the public streets with a person’s likeness? If their face is recognizable?

Perhaps in some cases this could be a grey area, but the short answer is yes. You can post, show, and exhibit the photo in an art gallery or online. You can publish it in a book. You can use it for editorial purposes. In the US and Canada, you are allowed to sell a photo of someone you photographed in public on the street as a work of art. What you are not allowed to do is use or sell it for commercial purposes. In other words, you cannot use that photo as a vehicle to sell a product or service, or use that photo for advertising whatsoever without a written release. I say consult your lawyer first if you are not sure.

I have a few tips here for those new to candid street photography:

"Awkward confrontations" - These are opportunities to educate the public to the legitimacy of public photography not being a "permissioned" activity. Is that a word? Don't make your subject angry. There is no reward in escalating a potentially tense moment.

Smile, be bold, and don't accept presumptions that public photography is wrong. But always SMILE. Don't make eye contact. Period. The moment you do, you might as well hang a sign on your neck that says, "HEY, I just took a photo of you."
If challenged "WHY DID YOU TAKE MY PHOTO?" - respond kindly. Compliment your subject. "I just love your look/hat/hair/clothes“. Giving people a good feeling by complimenting them is the best way to reduce potential problems.
Hand out business cards, "would you like to buy some of my photos?" It shows you're also a professional, or a photographer who takes their work seriously. If you are eager to introduce yourself it shows you are not hiding something.
"I'm trying out a new camera and just testing it." - This may sound lame, but believe me, it works.
"Are you a photographer, too?". Ask them to photograph you.
Scope out public security cameras and point out that people are on camera, everywhere.
"I'm photographing the building behind you." Take two shots. One of them, and continue to shoot another photo of the area behind your subject. Don't look at them, just keep looking beyond them.
"Sorry I didn't mean to upset you. May I delete your photo?" - In some cases it may be best to ask first before taking the photo -- keeping in mind that in some countries it is mandatory by law to do that. Always delete the photo if someone insists – no photo in the world is worth the confrontation. Understand the local laws and try to be sensitive to the local customs.
Share some images on your LCD (if you have one) to reduce their fears of the unknown, and to encourage their appreciation of the art-form. Talk about the many decades of tradition of street photography, documenting the times. Be friendly and kind. In most cases people won't insist on you deleting the photo.
Ask them to "participate". (In my view, asking for their "permission" confuses the issue of rights - and avoids potential hassles).
Have "rights" cards to hand out, explaining the First Amendment (in the United States) or in Canada we have The Charter of Rights and Freedoms which guarantees basic rights and freedoms for all including the right to express yourself through photography.
Explain, especially to 'security' guards and the police, that your camera shoots terrorists and criminals, and that your camera is ever present to bear witness and capture events as they occur.
Carry your camera with you all the time. Don't be afraid to stand your ground - be confident.

Photographers are the only ones who can go out and shoot something … and bring it back "alive". Your camera is not meant to be a weapon, don’t use it like one. Unless you’re being mugged and that’s all you’ve got for protection ;-)

(Just as a footnote, only once have I ever been asked to delete a photo, a photo I never took in the first place).

Blog posts by Alex Zafer