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overview
This page considers unauthorised taking and publishing
of photographs, including non-commercial street photography,
paparazzi snaps and 'voyeur cam' sites.
It covers -
The following pages explore legislation, practice and
debate in Australia and overseas, and broader questions
about unauthorised use of your image.
The note supplements discussion of privacy
principles, personality rights, the Australian privacy
regimes, stalking and Censorship.
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
- 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'.
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
- 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.
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.
anxieties and ambivalences
Much concern about unauthorised photography centres on
images of children, in particular perceptions that photographs
are being made, distributed and accessed by deviants or
those seeking to commercialise a prurient interest.
Some observers, while acknowledging abuses, have noted
that contemporary culture is replete with images of children
in various states of undress and 'suggestiveness'.
Contrary to claims of modern decadence, that is not new.
Even a casual acquaintance with pre-1950s kitsch or high
art or with works such as Victorian Erotic Photography
(New York: St Martins Press 1973) edited by Peter Mendes
& Graham Ovenden and Elisabeth Stoney's 1995 paper
Alice Does: The Erotic Child Of Photography suggests
that exploitation predates Calvin Klein. While we might
aspire to the innocence of an edenic past it is a past
that never existed. Some historians for example suggest
that around 40% of prostitutes in belle epoque Vienna
were under 15. Others note that the age of consent for
females was only raised from 12 years during the first
decade of last century.
the culture of spectacle
Ambivalence about 'ownership of the image' is evident
in treatment of celebrities
- film stars are for example sometimes held to have lost
rights through being famous - or the merely notorious.
Critics of Australian and UK 'tabloid tv' and red-tops
(the contemporary yellow press) thus note privacy breaches
by current affairs journalists, particularly of stigmatised
groups in what some have characterised as a "digital
tar & feathering". Personalities such as Naomi
Campbell and Nicole Kidman have responded to 'stalkerazzi'
by taking media groups, editors, photo agencies and individual
photo journalists to court in an effort to inhibit invasion
of their personal space or use of their images (whether
captured in a public place or in locations, such as a
gymnasium, where there might be some expectation of privacy).
Points of entry into the literature are Jane Gaines' Contested
Culture: The Image, the Voice, and the Law (Chapel
Hill: Uni of North Carolina Press 1991) and Image Ethics:
The Moral Rights of Subjects in Photographs, Film &
Television (New York: Oxford Uni Press 1988) edited
by Larry Gross & John Stuart.
Other works include Clay Calvert's Voyeur Nation:
Media, Privacy & Peering in Modern Culture (Boulder:
Westview 2000), Rod Tiffen's Scandals, Media, Politics
& Corruption in Contemporary Australia (Sydney:
Uni of NSW Press 1999), John Langer's Tabloid Television:
Popular Journalism & the 'Other News' (New York:
Routledge 1998) and Richard Schickel's Intimate Strangers:
The Culture of Celebrity in America (Chicago: Dee
2000).
management
Underlying some calls for new legislation or protocols
is the notion that photography/publication should only
take place in circumstances where it is feasible to alert
everyone who appears in an image and gain explicit permission
to either take the photograph or publish it. As both professional
and amateur photographers and publishers have noted, that
notion is deeply problematical.
Some photographers have suggested that it is impossible
to secure permission from everyone in an ordinary street
scene. Photographers should not attempt to be covert,
relying on the likelihood that passers-by have an opportunity
to identify the photographer and if they wish avoid being
caught by the lens.
One thus wryly comments that
when
there's a whole group of tourists doing this ... residents
must feel like ducks trying to escape a shooting party.
Such
comments have provoked a response that, rightly or wrongly,
many parts of the world derive substantial benefits from
tourism and that supposedly passive subjects of photographs
often are adept at subverting expectations or otherwise
managing their relationship with the lens. A Sri Lankan
photographer quipped to us that it is generally better
for the ducks to be shot by the lens - and feed on the
tourist dollar - than die of starvation or be shot by
the army.
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