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authority
This page considers questions about the nature of authority
and consent in making and publishing of photographs and
videos.
It covers -
introduction
The past five years have been marked by expressions of
concern in Australia and overseas regarding unauthorised
taking and publishing of photographs.
In particular those concerns relate to
- web
publishing of photos of young people
-
intrusions by paparazzi in search of revealing snaps
of celebrities
- non-commercial
photographs of street life
- stalking
- voyeur
sites, including those featuring images taken in change
rooms or with 'upskirt cams'
- installation
of closed circuit television (cctv)
systems in public places and quasi-public venues such
as retail malls.
They
have been accompanied by concerns regarding non-covert
use of web cams and other imaging devices in the workplace,
with employees and students complaining about pervasive
installation of cameras in corridors, open-plan offices,
libraries and classrooms in commercial and academic buildings.
Criticism has been intensified where the camera owner
has also established networked
RFID and photo identity card systems, particularly
systems with facial recognition
capabilities.
Those concerns reflect the advent of new technologies
such as digital cameras (notably camera-equipped mobile
phones), online publishing tools and image-searching tools.
They also reflect anxieties about the safety of children
and notions of the 'digital predator'. They are an extension
of often ambivalent community and legal responses to past
practice.
They have led to calls to prohibit - even criminalise
- any unauthorised photography of minors, with sanctions
against taking photographs in public places such as beaches
or streets and against publication on websites, whether
on a commercial or noncommercial basis.
Some of those calls have been based on a misunderstanding
or a misrepresentation of existing law and on flawed research
such as the notorious claims
by Marty Rimm. Particular proposals have been criticised
as unfeasible, unnecessary or potential erosive of individual
rights.
They have also led to demands for stronger protection
of celebrities, whether through publicity rights legislation
or through tougher protocols under the auspices of self-regulatory
bodies such as the Press Council.
The following pages consider local and overseas debate
regarding 'unauthorised photography', including the 2005
discussion paper by the Standing Committee of Attorneys-General
(SCAG) in Australia, and questions about the legality
of taking and publishing photographs in a range of circumstances.
authorisation?
What is 'authorisation' of a photograph or video?
For some people authorisation centres on a document
- often signed - that formally permits the photographer
or other owner of an image to deal with that image in
particular ways, for example use it as part of an advertising
campaign or in a book of photographs. It may be conditional
on some remuneration of the person featured in the image.
The document is often referred to as a release. It may
be agreed prior to or after the image is made, for example
as a condition of entry to a particular venue or participation
in a particular activity such as a television show.
Many people instead conceptualise authorisation more broadly,
as involving consent to capture of an
image.
The conceptualisation presupposes that individuals cannot
consent to capture of which they are unaware in circumstances
in which consent would be expected. For example, if you
are being covertly surveilled by hidden cameras in a change
room or toilet you are necessarily unable to consent because
you are unaware that the photography or video is taking
place.
The conceptualisation also presupposes that the individual
will have some notion of how the image may be used, refusing
consent for example if a photograph or video is to be
used on a commercial basis without remuneration of that
individual. In Australia and elsewhere people are free
to commodify their images and those of children or others
for whom they are responsible.
Some people will choose not to commodify (and will accordingly
refuse to sign a release). Others will sign on the dotted
line and, if fortunate or well-advised, will strike a
deal that provides fair remuneration and that does not
permit misuse by one party to the agreement.
Conceptualisation of authorisation needs to accommodate
a range of circumstances beyond such contact.
One is where covert surveillance is being undertaken for
purposes recognised by law and in accordance with law.
Such circumstances include photography, video and sound
recording by law enforcement bodies in dealing with crime.
Australian and overseas law typically allows such surveillance
subject to compliance with legal frameworks, eg surveillance
must be carried out for the purposes of law enforcement
rather than for the personal gratification of those officials
or for commercial benefit and must be authorised by a
judge or magistrate.
Another circumstance is where the individual is alerted
that photography or video will or is likely to occur and
authorises that capture of their image by entering a retail
mall, office building, theatre, university seminar room
or other venue.
Assent is signalled by the action of entry to that venue,
consistent with policies such as acceptance of a retailer's
demand to check a consumer's bag as the condition for
that individual's entry to a store. The expectation is
that surveillance will not be misused and that the entity
making the video or photographs will not for example place
them on the web or publish them in a book without explicit
permission from the subjects.
A more challenging circumstance is where government agencies
or their agents, some of which have a distinctly cavalier
attitude to privacy) use
closed circuit television cameras (CCTV)
and other mechanisms to watch people in public places
in real time and to record those images.
The individuals may be unaware that they are being photographed
(and indeed unaware that a camera is in the vicinity)
or may feel powerless, as in practice they do not have
a real choice to avoid particular locations and therefore
will be photographed whether they like it or not.
Finally, some people will be photographed in public places
such as streets, town squares and beaches by amateur and
professional photographers on a non-commercial basis.
Authorisation of that photography or video reflects traditional
notions of the public gaze, discussed in more detail below,
in which individuals prior to the invention of photography
were free to sketch, paint, describe or otherwise observe
anything that was 'in plain sight' in a public place such
as a street. Courtesy might demand that the observer seek
permission before making a record of what was seen but
the law did not.
expectations
Expectations about photographic and publishing practice
vary significantly and have changed over time.
In parts of the world taking a photograph
is regarded as equivalent to capturing part of the subject's
essence or as an embodiment of a patriarchal relationship,
with the photographed individual being objectified in
a way that denies their integrity. Display after the subject's
demise may be offensive, with Australian museum protocols
and broadcasting guidelines accommodating the concerns
of some Indigenous people.
Some institutions thus agree that artwork by a deceased
artist or an image of a deceased person will not be displayed
for a time after that person's death. Broadcasters sometimes
feature warnings that a television program features images
that Indigenous viewers may find distressing.
In other parts of the world it is unremarkable, with millions
of snaps being taken each day of colleagues and family
members in homes or other private spaces. An unquantified
number of those images has been placed on the net by the
photographer or others, including blogs
and photo sites such as Flickr.com.
Millions are also taken in public spaces, including shots
of tourist spots - almost inevitably featuring a madding
crowd - and ordinary streetscapes. (We have pointed elsewhere
to estimates that around 233 million photos are taken
each day: some 2,700 still images every second, of which
holiday snaps account for 80%). Many of those images do
not get out of the camera, off the memory stick or beyond
the photographer's hands.
Few of those images are associated with a formal authorisation
by the individual or individuals appearing in each photo.
That is partly because of expectations - justified or
otherwise - that images will not be misused (or even published)
and that individuals have some redress against abuses.
Those expectations are founded on a mix of technology,
custom, trust and law.
Early photography was distinctly unspontaneous: long exposure
times and problems with lighting meant that covert photography
at close range or at a distance was not practical. Affordable
high-speed film and advances in camera technology are
quite recent.
In discussing Australian and overseas privacy regimes
we have noted that for much of history privacy has been
based on physical impediments to surveillance.
Put simply, privacy was based on shutting the door, drawing
the curtains and sealing the envelope rather than on accepted
transcendent legal principles.
It was also based on a differentiation between the public
and private spheres. There was little or no privacy for
what took place in the street, in public venues or that
could be readily observed from public spaces. Activity
by peeping toms or other nuisances at the border of the
public and private spheres could be dealt with through
a range of public order legislation or common law.
Changing expectations about personal integrity and commercialisation
have seen a slow, and often uneven, acceptance of what
has variously been characterised as publicity rights or
personality rights.
As discussed elsewhere on this site, those rights are
located at the intersection of intellectual property and
privacy law. They have been primarily concerned with the
commercial personas of celebrities and have extended trade
practices restrictions against commercial 'passing off',
for example implying that an individual has endorsed a
specific product or service.
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