Photo-phobia and its unintended consequences

Pardon my focus on the Brits of late but they’ve been dealing with a couple of issues that we shouldn’t underestimate the possibility of facing here one day. The Orphan Works legislation may have only just been defeated, but an equally great threat might be just over the horizon.

The UK Information Commissioner’s Office has drafted a Personal Information Online Code of Practice which is to eventually govern the use of public information in general, and which could affect photographers specifically.

Language in the current draft compels photographers working in public to obtain the consent of any person who may appear in any image if that image could result in commercial gain. However the ICO somehow maintains that street photography is not threatened.

Banned? Climate Change protesters near Heathrow. Photo by Wade Laube

“If you are in a public place and there is a reasonable expectation of you being photographed, the likelihood of you breaching the Data Protection Act is very, very slim,” an ICO spokeswoman told Amateur Photographer Magazine.

But that’s only if you’re not getting paid for it. And the ICO acknowledges that using pictures in a portfolio, a personal website or for an exhibition may defy the code.

It’s disappointing the ICO does not accept that much of their concern is already dealt with by law, largely through the use of model and property release contracts. The law already says a publisher can’t use a photograph of any individual — a public figure or anyone else — for advertising purposes without the appropriate legal consent. Furthermore, the ICO’s assurances leave editorial photographers shooting stock, and travel photographers and photojournalists utterly in the dark, because they too photograph punters in public, they make commercial gain from their pictures, but in their work contracts are generally out of the question.

The British government is entering dangerous territory by validating the notion that an individual should control their image by equating it with personal details like name, age and social security number in the Data Protection Act. Apply this standard retrospectively and they’d be without much of the country’s historical record in an instant.

Banned? Twins on the London tube’s Piccadilly Line. Photo by Wade Laube

The motives behind any public support for greater controls over photography come in part from misconceptions over what photographers they see on the streets are actually there to do. But mostly it’s a backlash against the paparazzi industry which has achieved its power and profitability, ironically, because of the public’s great appetite for its product. The money has fuelled intense competition and this has resulted in shameless public spectacles and an increased general animosity towards all photographers who are getting tarred with the same brush.

In any case, at least one photographer already claims to have been stopped by a council officer citing the Data Protection Act.

It’s unlikely the British government really intends to ban its press from photographing Remembrance Day Parades, tourists at the Tower of London or exhibitors at the Chelsea Flower Show, but it’s the unintended consequences of the proposed code that could be most troubling for them. Police and other officials can already have an inconsistent, misguided and often plainly wrong understanding of the laws surrounding public photography and many of them continue to intervene wherever they encounter it. But to unleash a set of regulations as ambiguous as these would take us all back to the photo-phobia of the immediate post September 11 2001 era.

Approved! London without the people. Photo by Wade Laube

wade@wadelaube.com

www.twitter.com/wadelaube

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