Photographing People and Children in Public Places

June 02, 2016  •  Leave a Comment

Introduction / Disclaimer
 
Any discussions regarding the law on this website relate to the laws of the UK - England, Scotland and Wales. The law is likely to differ in other jurisdictions.
 
The information published on the site should not be regarded as definitive legal advice – always obtain advice from a legal adviser qualified in the area of law under discussion. The opinions expressed herein represent an opinion at a given point in time. I have provided a number of legally verified articles here on my website which cover all of the issues likely to be raised  – please take the time to read them (links are below) I can’t always reply to personal requests for advice.
 
Readers in the UK are also free to contact the Home Office for further information - ask for specialists in Media and Intellectual Property Law - and do let me know if you find anything worth adding on this sensitive and sometimes complicated subject. Note that the law is not static, and may evolve over time. For that reason it makes sense to keep yourself abreast of any developments or precedents which may arise in the future. The contents of this article are deemed to be correct at the time of publication. This is a general overview – for more specific matters always seek the advice of a qualified media lawyer.
 
Photographing people and children in public places
 
For much of the last few years, anyone wielding a camera (most notably a large one) risked being viewed as a potential terrorist threat. In response - in the summer of 2011, the Home Secretary Theresa May instructed the UK police force to adopt a more common sense approach combined with a better understanding of the use and misuse of our terrorism laws. I think there has been an improvement since then and it appears that individuals who are enjoying a spot of picture taking in public are now less likely to be approached by the authorities.
 
But unfortunately the suspicion of terrorism is not the only accusation hurled at photographers. There still remains the possibility that you may be questioned or even threatened by members of the public who believe they know (or can rewrite) the laws under which we all live. This is very much the case when it comes to capturing and publishing images containing minors. Even parents themselves have been poorly treated at times when taking photographs of their own youngsters. I myself have had occasional chats with parents (and just bystanders on site) who quite often have a knee jerk negative reaction to the idea of apparent impromptu street photography. Interestingly, these people are frequently unable to name what the actual fear is when quizzed. Ignorance and subsequent fear breeds illogical intolerance!
 
With respect to photographs taken in public, many people believe that you will need their consent before capturing or publishing a photograph containing their likeness or that of their children. This is quite simply not true. If that were the case, it would be close to impossible for anyone to enjoy photography and our news and tourism industries would soon grind to a halt. In most circumstances it is largely impossible to avoid creating photographs in public or at public events which are devoid of people, and is it often the people who make an image both interesting and appealing (this is particularly true of ‘street photography’). Although the law is clear and unambiguous photographers are still sometimes subject to difficulties when innocently taking or publishing images containing people or children, and this article seeks to address the more common misunderstandings.
 
What is “a photographer”?
 
A photographer is anyone engaged in the pursuit, professional or otherwise, of capturing moving or still images.
 
Do I need permission before I take someone’s photograph?
 
Not at all. There are no laws preventing photography of people, children, buildings, objects or anything else in a public place, or in any place open to the public where photography is not expressly prohibited. There is no expectation of privacy in a public place. But don’t be a pest, and don’t get in anyone’s way or cause an obstruction – if you’re overly persistent you could face a harassment charge (most usually this will be the province of the more aggressive realms of the paparazzi). It’s worth noting that TV Broadcasters in the UK do tend to operate with a ‘release form’ system whereby those captured for current affairs programmes (for example) are asked to sign a document ‘releasing’ their rights to use the images for broadcast. As I understand it, this is principally because this footage frequently goes beyond a simple moving image but also involves the expressing of opinions etc since interviews etc capture sound and conversation. A simple street scene in a TV news programme obviously does not require a wad of signed release forms prior to broadcast and children’s faces etc which you often see ‘mosaic’d’ or blurred out in some current affairs programmes etc either come under International Broadcasting Standards guidelines rather than the law of the land or they are on private land. TV News items within schools / shopping centres (IE private and/or controlled spaces) will be subject to the rules of the landlord / organisation involved.
 
Where or when might it be wrong or illegal to take photographs?
 
If you take photographs on private land without the knowledge or permission of the landowner you could be charged with trespass, it’s both prudent and polite to check it’s OK before you start taking pictures. You are not permitted to take photographs on private land where the landowner has expressly prohibited photography. Photography is commonly prohibited in some shopping centres, museums and art galleries, even some concerts, and within municipal buildings including courts. If one were to specifically capture an image of individuals engaged in a private act (such as using a long lens to peer into someone’s bathroom or bedroom) that is clearly a no-no – nor should you repeatedly bother your subject which may leave you open to legal sanction. It is likewise unacceptable to capture an image for the purpose of defaming your subject(s) and it is an offence to capture an indecent photograph of a minor (the Protection of Children Act 1978).
 
Is it illegal to take photographs of children?
 
No, there are no separate laws for minors (but it is of course illegal to capture an indecent photograph of a child). However some schools and childrens’ sports venues may choose to restrict photography at some events. Such venues are of course private property (where the siteholder can impose any rules they wish) but no such restrictions could normally be imposed or enforced in a public location.
 
Can I publish photographs containing people and children?
 
Of course you can. For images captured in locations where there can be no reasonable expectation of privacy, the photographer does not need the permission of the individual(s) who appear in that photograph in order to publish it online, in a newspaper, textbook or in a magazine.  The Data Protection Act includes a ‘special purposes’ exemption and such publication would not constitute a breach of the right to privacy. The general term for such usage is ‘editorial’ and the photographer can pass on or sell their work for that purpose (and may use the images for the purpose of artistic expression). Good examples include news reporters, event photographers and of course paparazzi. The same rights extend to all photographers, amateur or professional. Contrary to what most people think, there is no separate law governing the taking of or publication of images of minors (providing the image is not used to depict the indecent exploitation of children).
 
The general rules governing newspaper publication of certain photographs of children (most specifically the children of celebrities when going about their day-to-day life) have been modified in recent years. Whilst it may be unrealistic for those in the public eye to expect photographers and fans to explicitly ignore them, it may be possible for them to prohibit publication of images of their family – this is however variable by jurisdiction with the UK taking a generally sympathetic view (not necessarily echoed on the continent where the term public interest is interpreted differently). This relates to Clause 6 of The Editor’s Code – which serves as a (self-regulatory) framework for ethical practice within the UK Press.
 
When do I need permission to publish pictures of people or children?
 
If you intend to use images of prominently recognizable individuals to advertise something then permission should be sought (otherwise a parent may not be too happy to see a picture of their child on a sweet packet or promoting a product they would not normally wish to endorse).
 
When can’t I publish pictures of people or children?
 
As mentioned earlier, you can’t publish images which depict a private act, or images captured on private land where the landowner forbids photography. Nor can you publish photographs which are defamatory (or indecent if the subject is a minor).
 
I’ve received a complaint from someone appearing in one of my pictures, what do I do?
 
Many parents wrongly assume that you need permission to take or publish images of them or their children (this would only be the case if the image were used in advertising). Perhaps, if the situation appears un-heated / reasonable, you could politely explain the law – after all, if they were correct then we would have no tourism industry and no news industry! Chances are that the person making the complaint is uneducated on their position and is suffering from a fear backed with media hype, here-say and general knee jerk behaviour.
 
I would recommend that you keep a record of any communication between yourself and the complainant, particularly if there has been any threat made towards you. I guess most photographers will remove an image rather than waste time attempting to communicate with an angry or confrontational complainant, but this should always be accompanied by a brief explanation of the law and a statement that you have removed the image as a favour to them. I always remove and delete images when requested. There’s just no point trying to argue with ignorant people on the street.
 
I’m a wedding photographer and a guest is insisting I remove images from my Blog and Facebook page containing her child, what do I do?
 
It is reasonable for anyone attending a wedding to presume there will be both a professional photographer in attendance and guests who will be taking photographs. In the age we live in it is also reasonable to expect that the professional photographer, and the guests, will share their images on the internet for the enjoyment of others. In short, guests at a wedding and other similar functions should really expect to be photographed. In some instances the photographer may wish to refer the complainant to the bride and groom, since the photographer is not obliged to take instruction from any third party.
 
I took my little boy to a children’s party recently where I enjoyed taking pictures and sharing them with the other parents on Facebook – one of the mothers is telling me to remove all the shots containing her daughter, what do I do?
 
Providing the party host or landowner was fine with people taking pictures at the party then there is nothing to restrict you from capturing images of your family and other families, and there is nothing preventing you from sharing those images online (or selling prints to the other party-goers). Other parents do not have the right to determine whether or not you can take or share your photographs. If a parent does not wish his or her child to be photographed then it is best that they move away whilst photographs are being taken. 
 
If I take somebody’s picture do they have the right to a copy of it? I photograph events, just like other hobbyists, but quite often people get in touch and ask for digital copies of my photographs.
 
Under Copyright law every image you create is your intellectual property unless you signed a release form to the contrary prior to the shoot – the people appearing in the photographs do not have any rights to the image and they do not have the right to ask for copies of your work. If that were the case, the photography industry couldn’t exist.  It’s up to you what you do with your pictures, however photographs are sold according to their form and the manner in which they will be used. As a general rule a full resolution digital image will command a much higher pricetag than a print, simply because a digital copy (if the license permits it) can be used many times over online or as hard copy.
 
The bottom line …..
 
It’s understandable that any parent will feel protective towards their family and no parent should be criticized for that, but very often this is manifested in unreasonable or aggressive demands which have no legal or rational merit. In turn no photographer (if acting reasonably) can be expected to respond positively to threats, demands or insults. The reality is that we are all seen every day by members of the public and a plethora of CCTV cameras, as are our children, as we come and go from school/the shops/our homes/our friends’ homes and countless places of habit or interest.
 
However anyone persistently or covertly photographing children in a manner which could be viewed as suspicious is understandably likely to attract the attention of parents and the authorities. It is also my personal feeling that if a member of the public asks you to stop photographing them then it is simply a matter of common sense and politeness that you comply.
 
Further reading:
 
 
I also went a bit long on a blog here (I'm not blessed with brevity it seems!) - It covers the same ground, at the start but it's a lot more detailed in the semantics of what the emotions are behind people's reactions and the control measures that result. Anyway - enjoy!
 


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