Let’s pretend I’m a photographer. It’s a stretch, I know, but bear with me. Let’s also pretend that I’m a street photographer. I take photos of things and people in public places. I share these on my online gallery, but I could also sell prints or licenses. Can I just do that? Do I need anyone’s permission?
By the law (and I refer here specifically to Dutch law), every citizen has what’s known as portrait rights, a set of rights and privileges related to their likeness on photographs, videos, and even drawings. Any photo where your face is visible is considered a portrait in this context. The law doesn’t distinguish between a crowd photo where your face is visible among hundreds of others, and a photo where you’re front and center.
The law does distinguish between photos that were taken with or without an assignment. This gets really complicated really quickly, so we’ll focus only on photos taken without an assignment. After all, I take photos for my own purposes.
As a citizen I have a right to photograph (as part of my right to freely gather information), to share these publicly (as part of my right to free expression) and to sell them (as part of my right to profit from my own labor). These rights aren’t absolute, however; they clash with others citizens’ right to privacy, their portrait rights, and the rights of persons and institutions to govern what goes on in their property. The legality of street photography is the clash between these contrasting rights.
When it comes to taking a photograph, the law is simple. If I’m standing in a public space and can see something with the unaided eye I can take a photo of it. The only exceptions made to this right are very specific, such as military bases and vehicles. Anything else you’ll usually encounter is fair game: people, their houses, works of art. No-one can ask you not to take these photos — well, they can ask, but the law doesn’t require you to obey them.
The law, however, doesn’t specify when it is or isn’t okay to share or sell such a photo. In practical terms it’s up to the judgment of the photographer or publisher of the photo, after which the subject of a photo can protest, and if they can’t come to an agreement, it’s up to the judgment of a judge. It comes down to weighing the photographer’s rights against the subject’s rights, both of which are substantial.
The law provides a framework to aid this consideration: reasonable concern.
If you object to a photo that features your likeness which has been shared on the web, posted in public or used commercially, the judge will require you to argue your reasonable concern. These arguments are very subjective and very fluid. For example:
- The image is damaging to my reputation because of the content of the image. Perhaps I went a little wild at a street party, or the photo was taken while I was sneezing, making me look like a monster.
- The image is misleading; it applies negative attributes to me due to the content of the image or the context in which it’s used. Maybe I was drawn into an argument on the street by some rude person who happened to be of a different race than I am, and this photo is used to illustrate an article about racism, implying that I have racist opinions.
- The image is harmful to me because people I know saw it. I told my spouse or parents that I was going to a literary convention, but now they’ve seen a photo of me attending a concert. Or I was shown kissing someone who isn’t my spouse…
The judge has a few decisions to make. To begin with: do my arguments really hold water? Does the judge feel that the photo really is defamatory, misleading or harmful? And if the arguments are considered valid, and constitute a reasonable concern, how do they weigh up against the photographer’s and publisher’s concerns?
Every case has its own, customized outcome. Sometimes the photographer is right, sometimes the claimant is wright, but the photographer wasn’t wrong, and is simply requested to cease publication. Sometimes the photographer/publisher were wrong and must apologize or provide some sort of compensation.
The gist of which is this:
When you exercise your legal right to take a photo, and that photo includes a person, you can’t know for certain whether it’s okay to publish or sell that photo.
Only a judge can determine, for definite, whether your publication or sale of a photo was legal, and a judge will only get involved after a complaint has been filed by the subject.
So what’s a photographer to do? The only way to be certain is to never publish photos that include people who haven’t explicitly signed a release form. This is obviously untenable; it would eliminate the concept of documentary or journalistic photography, both of which are well-protected by the law. And rightly so; journalism and documentary activities are essential to our civilization; they’re significant elements of our implementation of public democracy, and they’re important reflections on the continuity of our culture.
All you can do, as a photographer, is to exercise good judgment. To guess, as far as you’re able, whether the subject of a photo has reasonable concerns against the photo’s publication or use. To guess whether it’ll cause anyone problems or distress and to weigh that against your own rights and priorities.
You need, in essence, a street photographer’s code.