23. Photography for the citizen journalist

Being in the right place at the right time, and being there to capture the image that cuts right through — it’s a labour of love, and it’s the content of that that can be massively important.
… Tim Page on photojournalism. ABC News. 18.09.15.


A TSUNAMI floods ashore as people run to seek safety in tall buildings. Cars collide on the highway. A demonstration descends into violence as clashing sides confront each other. Police harass or beat a defenceless victim. Tourists point mobile phone at popular buildings. Remote, automatic, hidden cameras concealed in the bush to take photos of wildlife at night sometimes capture images of people.

We’ve seen the images. We see them because cameras are everywhere. They keep an eye on private and public places. They are in the devices in our pockets. Our friends use them and post our photo on social media.

This is age of ubiquitous cameras and like other technologies they can be used to invade peoples’ privacy, to shine a light into dark corners where miscreants lurk, to make public what some would prefer to keep hidden or to reveal something new about our world.

Editorial photography

As citizen journalists we will be engaging in editorial photography. This can be defined as images that depict news in all its forms and that may accompany an article in a publication.

Editorial is not commercial photography that is used for selling or marketing, such as photographs used in advertising. Nor is it other genres like wedding photography or fine art photography. Some genres such as adventure sports, portrait or landscape photography become editorial when used in publishing.

Commercial photography

Commercial photography, such as is used in advertising, uses peoples’ likenesses to endorse a product or idea for the purpose of selling or promoting it.

Were we photographing for profit-making purpose such as advertising, then we would have the person sign a model release acknowledging their image will appear with advertising and indemnifying the photographer of any outcome of this. That is because the use of the image would be beyond the photographer’s control when done for a business or other organisation. There are examples of model releases online and there are model release apps that people can sign on a mobile device.

Photojournalism

The editorial photography we engage in as bloggers is photojournalism, the telling of stories through the medium of photographs and video. We require no formal permission to use the editorial images we make.

Let’s take a look at some of the considerations around editorial photography as they affect us as citizen journalists.

The Dictionary app provides a succinct definition of ‘editorial’:

editorial | ɛdɪˈtɔːrɪəl |
adjective
• relating to the commissioning or preparing of material for publication: the editorial team.
• relating to the part of a newspaper or magazine which contains news, information, or comment as opposed to advertising: there are now fewer editorial pages.
noun
• a newspaper article expressing the editor’s opinion on a topical issue: the paper ran an editorial denouncing his hawkish stand.
• [mass noun] the parts of a newspaper or magazine which are not advertising: we are giving readers more for their money — quality editorial and more colour.

There is no expectation of privacy in a public place

Peoples’ likeness is not protected by copyright and nor is it an invasion of privacy to take another person’s photograph in a public place.

This makes it legal to take such photographs showing images of people, however publishing them for some commercial purpose such as selling a product without the people appearing in the photograph signing a model release is not legal.

Photographers may engage in street photography where people appear in images and at public venues.

As Andrew Nemeth, photographer and solicitor, puts it in his Australian Street Photography Legal Issues blog:

In Australia the taking and publication of a person’s photograph, without their consent or knowledge, is not an invasion of privacy, nor is it in contravention of case or statute law.

In Australia most forms of ‘unauthorised’ photography have in fact been authorised since the 1937 High Court decision in Victoria Park Racing v. Taylor (1937) 58 CLR 479 (at p.496). This was reaffirmed recently in ABC v Lenah (2001) HCA 63, where the Court ruled that despite the passage of decades since Victoria Park, any concept of a tort of invasion of privacy still does not exist in Australia.

As Justice Dowd put it with ruthless clarity in R v Sotheren (2001) NSWSC 204:

A person, in our society, does not have a right not to be photographed.

This is reiterated at Artslaw.com.

What about the Privacy Act and other law?

The Privacy Act 1988 does not apply to individuals who post images of other people without their consent. If the image is used for commercial purposes such as endorsing or selling goods or services, and a model release has not been signed by the person in the photograph acknowledging such use, that is likely to be illegal.

Photography of people in public places could run afoul of other laws. Let’s take a hypothetical case of topless female bathers at the beach. While there appears to be no law preventing photographing them (remembering that there is no expectation of privacy in a public place) if someone was persistent or intrusive in doing so they could be charged with creating a public nuisance. In this example, a person’s interest in photographing topless female sunbathers may be mere voyeurism.

Gary Ayton, writing in his Gary’s Photography blog, mentions such a hypothetical context:

The NSW Summary Act does not ban people from taking photos of semi-naked people in public places such as the beach; society and law is increasingly demanding that behaviour by such people that most would feel is offensive, should be avoided.

In his blog, Andrew Nemeth writes that ‘peeping tom’ photography in NSW is now addressed by Division 15B of the NSW Crimes Act 1900, specifically the Voyeurism and related offences provisions in sections 91I, 91J, 91K, 91L and 91M.

He writes that Division 15B does not generally apply to everyday candid photography as it is limited to photographs of a sexual and voyeuristic nature, usually of a person’s ‘private parts’, and photographs made without consent in places where a person would reasonably expect to be afforded privacy (such as toilets, showers, changing rooms, enclosed backyards etc).

In Queensland, amendments to the Queensland Criminal Code 1899 were introduced in November 2005, leading to s.227A Observations or recordings in breach of privacy and s.227B Distributing prohibited visual recordings, with s.227A(2) specifically targeting voyeurism and ‘upskirting’. The law is limited to photographing another person’s private parts. As in similar NSW legislation, the law exempts everyday photographs of people in public places.

As citizen journalists we can apply the public interest test to assess what is newsworthy. Is there a public interest in the content of a photograph? Does it supplement, illustrate or clarify what we are writing about? Would it harm the reputations of those in the image?

Photography in private and public places

Owners of private property including commercial premises can prohibit or control photography inside their premises. They cannot, however, prevent photography into the premises from outside. Confusing this is the prevalence of people using the cameras in their mobile phones to comparison shop or to do product research and price checking in stores.

In Australia we are also free to photograph buildings and architectural works from outside (‘freedom of panorama), as well as statues and other things in public places. Murals are generally excluded from this. There is no Australian copyright law pertaining to the appearance of buildings or objects even though the actual architectural design would be copyright.

Photographing children

A popular misconception is that permission from parents or guardians is required to make photographs that include children.

Andrew Nemeth, who I quote several times here because he puts law into plain language, puts the law like this:

Aside from specific provisions in the Children and Young Persons (Care and Protection) Act 1998 (especially child protection orders arising from abuse, AVO’s — Apprehened Violence Orders — or custody proceedings), children are not afforded unique legislative protection when it comes to photographs, consent, privacy or defamation. As with adults you need a signed release for commercial use, but for non-commercial images, nothing.

It is unlikely a parent would bring a child under a child protection order to a public event where it would be reasonable to expect photographs or video to be made.

When I cover some event where there are children who will appear in the images I ask whether any are subject to child protection orders. These are court orders preventing publication of photographs of children and other persons under the Child Protection Act or witness protection. The last thing we would want to do as citizen journalists is to show a child that disclosed its whereabouts to a hostile parent.

Some course and event organisers have participants sign a form notifying them that photos or video will be made of the event and they and their children might thus be recorded and the images published.

Copyright in photography

Where we own the copyright to photographs we have the exclusive right to:

  • reproduce and distribute our photos including uploading to an online service
  • make prints
  • sell or license use of our photographs so that others can make use of them.

Freelance photographers producing images for publications own copyright unless some other agreement affecting ownership is made.

Copyright does not include photographic prints, photographic negatives or digital files as these are subject to property law.

The necessity of photographic freedom in democratic societies

The free practice of photography other than the exceptions I note is a necessity in democratic societies because it:

  • expresses our traditional value of freedom of speech
  • is necessary to document the historic record; this applies especially to documentary photography that records the issues, urban and rural environments, workplaces, personal appearance and personal and social practices of particular periods in our history
  • provides evidence in court cases
  • holds institutions and authorities accountable for their actions, or lack thereof.

Be considerate

When we engage in photography in our journalism it is best to be considerate of others, not get in the way of people such as emergency workers doing their job and to talk to individuals about how we will use their images. This may not be possible when covering some public event.

The proliferation of photographs following the introduction of mobile phones with cameras and social media makes it likely that our and others’ images will turn up online somewhere. This is a condition of the modern world that we simply must accept.