Night Train Productions Ltd. | Blog

Photographing People and Children in Public Places

June 02, 2016  •  Leave a Comment

Introduction
 
This blog has undergone a couple of different edits over the years. This one was last updated 10th May 2018 and now includes some updates and some references to the GDPR (Data Protection Regulations) that are now being enforced.
 
I do a lot of child and teen photography... It's a beautiful and lovely place to be - I just love kids and the results can be very rewarding for the kids, the parents and all involved. But the arena of child photography has definitely changed... and is still changing. It's sad that we are all having to tighten everything up because of the dreadful things that happen out there today - but there are responsible ways through this.
 
Is it worth it though? I know people who just won't photograph children any more because they just don't want to risk unpleasant reprisals. I understand why you might want to just play safe and avoid the topic.... but my current stance is to stand and fight to protect this artform. The pariah must not win!
 
I am a parent and I've also been a youth leader in our village in Scotland for over twenty years. I love kids. My motivation for my voluntary work in this area and of course my photography is the time I love spending with them and the service I provide in doing so. Since I'm 'above board' in this area - IE I have no other motives, I feel a need to be free in how I behave and how I represent my work. Having said all that, it would just be plain stupid of me to act as if I had some kind of impunity.
 
Not being a paedophile is difficult to prove... and if you're a middle aged man who runs around taking photos of kids for hours like I do, then this topic is going to come up... even if it's unspoken. So my joy in the art form is obviously held very much in check... first of all to naturally protect the children themselves but then also to protect me.
 
So if you're a child photographer, and you want to know where we stand nowadays, read on!
 
The most frustrating part of protecting yourself is that even when you tick all the right boxes, people who don't know you can still sometimes suspect you for either being simply irresponsible or, at worst, harbouring something unsavoury. Of course, we can all understand why a parent or even a bystander might feel like this - but when I've had incidents like this in the past, it's always been because the parent (etc) was unaware of the basic facts surrounding the activity or resulting photos in the first place.
 
The discomfort I felt when I was once challenged led me to do the below research which I now freely share with you. There may come a time when I do just give up and join the others who have packed it in... but for now, I believe the artform of things like child photography as well as general street and lifestyle work should not die out simply because of those who've abused it or even because of those who have lost all trust in men with cameras.
 
Disclaimer - Here's an important legal bit before I get started
 
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 then 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.
 
Please note that even with the alterations to the law with the EU General Data Protection Regulations, it is still a little 'wooly' regarding this arena. The main issue here is the handling and subsequent storage of personal data rather than any perceived infringement of a person by taking their photograph. A photograph counts as being someone's personal data - especially if you have stored location and name data etc in the exif part of the files you are creating - And please note, that this counts whether you end up publishing the shots or not - you're probably still storing them - and that's a deal. Interestingly, as of May 2018, it seems that you can film people without crossing these data storage boundaries since a video image of someone doesn't constitute personal data. Who knows why!
 
So basically, you can tell, that there is still some way to go in order to sew this up properly. I guess that means I'll just have to keep updating this blog! - Sorry for the long read folks.
 
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.
 
Release forms generally are an excellent idea - though obviously hard to manage when shooting groups or when you don't have an assistant. I have a wad of them in my camera bag - and I don't use them as often as I should! - If you'd like to click on my downloads page you'll see mine as a PDF there. Happy for you to copy this text and use it yourself - I paid an online UK lawyer template dude for it then amended it to work for me. 
 
Please note that getting your models / subjects to release their rights to the images you have of them should do the trick 99% of the time - but people can still just get weird sometimes for no apparent reason - not just because they think you are infringing the law of the land, but just to do with a feeling they may get regarding their privacy. Asking people to sign something is great until it draws attention to the fact that you're asking them to give you something of theirs - often for nothing. Some people hate signing stuff. Give it a try though - it's the professional way to go.
 
It's hard to say this since we photographers do often have to put up with a whole load of crap out there as it is, but if you are in a situation where people start to get upset, then really, just delete the shots in front of them, apologise and move on.... see more below on this. People skills are crucial here - and I guess if you can't hack it, take up landscapes!
 
One last thing about release forms - make sure you include your plan for the actual storage of the photos in the document. This will help you stay the right side of the EU GDPRs.  
 
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 of course).
 
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 could be perceived as defamatory in some way.
 
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, even on a private gig - and especially on the street / in public.
 
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 much the same ground but it's more my own personal story and feelings - and includes the incident I referred to above when I was once personally challenged for photographing children in public. Anyway - enjoy!
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