See-Ming Lee, who notes that “photographers hate being photographed,” captured this image of his fellow photogs at a Newmindspace event in NYC in 2009. Source: http://blog.seeminglee.com/2009/09/newmindspace-nyc-people-photographing.html

Freedom from Photography

Photos, Videos and Permission in a Digital Age

John Strieder
May 16, 2016 · 9 min read

Do you have the right to take someone’s photo or shoot video of them without their permission? Yes. Full stop.

The NPPA teaches on this issue: http://therighttophotographinpublic.com/reference.html and http://bit.ly/1UqqHN6

Don’t get me wrong: the NPPA expects that sometimes you’ll have to back down. But it’s clear about your objective rights, even if you can’t always enforce them.

If you’d rather take the word of Lifehacker, here’s Thorin Klosowski:

Your basic right is actually pretty simple: if you’re in a public place and you can see it, you can shoot it. This means as long as you’re in a public location you can legally take almost any picture.

Even Videomaker takes time to argue for the value of release-free journalism, even while it (correctly) insists photographers and videographers should get model releases for commercial purposes:

Consider all the video we’ve witnessed coming right off Wall Street and across the country when the Occupy Wall Street demonstrations unfolded. … If photojournalists had to get a release form for every shot like those, it certainly would have killed the spontaneity of the moment, and many a camera would have stayed capped due to legal concerns.

This rule even applies to privately owned spaces like malls and restaurants. They often forbid customers from taking photos or video, but those rules aren’t law. All they can do if they catch you is eject you from the premises.

But here’s the thing: Most of the time when this subject is discussed online, it’s in the context of filming police, a popular topic these days.

What if the person who doesn’t want to be photographed ISN’T a cop?

Here the question shifts from rights to duties: not what you have the right to do, but what you should do. Consider NPPA’s own Code of Ethics:

Treat all subjects with respect and dignity. Give special consideration to vulnerable subjects and compassion to victims of crime or tragedy.

Strive to be unobtrusive and humble in dealing with subjects.

The organization offers clear guidelines for when you can film or shoot. It offers only vague suggestions as to when you should restrain yourself. But those suggestions don’t come from nowhere.

This gray area is explored in an essay about photojournalism in the book “The New Ethics of Journalism.”

All the other ethical dimensions of journalism also apply to photojournalists: weighing the public’s right to know and see against an individual’s right to be left alone, avoiding personal harm, minimizing conflicts of interest and creating a reliable portrait of the world. (84)

And many members of the general public agree. Parents often assert on social media that people don’t have the right to film their kids without their permission. We do, of course, in public. But many don’t think we do. There is a range of perceptions about whether photographers can shoot or film without permission. Those perceptions are often inflamed by people’s desire to be left alone and avoid personal harm.

I have encountered several relevant situations in Portland while working toward a master’s degree in Multimedia Journalism at the University of Oregon.

Filming in a Goodwill, a privately owned store where I had permission: Twice, customers asked me if I had obtained permission from the store. The first inquirer accepted that I had, though he recommended to his wife that they stay out of the way of the camera. When I told the second that I had permission from the store and that he was in public, he retorted that the store was not a public place because it was privately owned. I told him that I would, out of courtesy, avoid putting him the foreground of any shots.

Part of a team filming an orientation for recently released convicts at MercyCorps: The intern running the meeting started by asking for a show of hands of what participants did not want to be filmed. The question was a precondition set on the spot by the intern. We agreed to keep these persons out of the foreground.

Filming a graduation ceremony at a prison: Staffers told us ahead of time which inmates did not want to appear in the movie. The expectation was that we would avoid them. I didn’t know what the consequences would be if one of these inmates appeared in a background or shot or a pan.

I’m not the only one having these conversations. Activist and exotic dancer Elle Stanger recounts an incident when a stranger took her photo on the sidewalk.

… here’s a tip from a model, fucking ask first, consent forms, whatever, I know there’s no EXPECTATION OF PRIVACY because we are in public, but I won’t forget your face, and you’ve just pissed me off.

Digital implications

This is not a new concern. But the advent of the digital age has turned up the heat.

In the past,

  • People in the background would appear in a photo or broadcast and not be identified.
  • A photo or video would appear in specific places — a newspaper, the evening news.
  • Only a limited number of people were acting as journalists, and you were familiar with their work.

Now,

  • A photo or video might go viral or spread — it could be seen by an unlimited number of people, now or years from now.
  • Thanks to facial recognition software, even a face in a background could go into someone’s tracking file.
  • The journalist no longer has complete control of context. My Goodwill video might be perfectly respectful, but I can’t stop someone else from sharing it with a headline that says, “Look at these Goodwill losers,” or a soundtrack that mocks the people onscreen.
  • There is no longer one common source of news, or one standard for news judgment. There are also many more amateurs filming and snapping photos of strangers. Some of those amateurs are citizen journalists, and vice versa.

The digital age has repercussions for journalists as well. Sources can push back, like Elle Stanger did, on forums where their power is equal to ours. They can spread the word on social media that we aren’t to be trusted. Or they can simply choose to follow and like someone else in a crowded media landscape.

“The New Ethics of Journalism” devotes two essays to exploring new, collaborative roles for everyday citizens: “The (Still) Evolving Relationship between News and Community” and “Community as an End.” This engagement model begs the question of how much you should involve stakeholders in your decisions. Taking photos and video with permission can interfere with recording the truth. But taking them without permission can alienate your new coworkers, the public.

So how do journalists and journalism organizations respond to this? It’s our job to try. In “Good Work: When Excellence and Ethics Meet,” Howard Gardner says we have an obligation as ethical journalists to tackle and resolve murky issues as best we can:

A central element of identity is moral — people must determine for themselves what lines they will not cross and why they will not cross them. (10–11)

Practical guidelines for journalists are out there, but they are few. Practical guidelines for the public are even fewer. I can’t find any. This is obviously a subject many care about, but useful information isn’t available. That’s how misinformation and anxiety proliferates. And again, this is ultimately our problem as journalists.

It’s also our responsibility. It would be easy to simply say our obligations ethically end with our knowing the law and what our colleagues expect. But is that enough? We have an obligation to respect the feelings of our subjects even when their understanding of what we do is muddy. None of this is their fault.

At the same time, knee-jerk acquiescence does not educate. We have a duty to inform the public about what we do and why.

Finally, the right to have a say in when you are being photographed or filmed is ultimately an issue of privacy. In the industry, we often frame this discussion as the right to privacy in a private place. But we shouldn’t overlook that every individual person has a desire for privacy everywhere especially when they are in pain.

There are no fixed ethical rules for TV journalists. The balance between public good and private pain is a delicate one.

And how do you know when someone else is in pain? When you impose on a homeless person’s life with a $3,500 camera, you may be causing pain merely by demonstrating your class status.

Likewise, Elle Stanger may be one of many women who feel private pain when she is catcalled by strangers in pubic. The photographer’s actions upset her. His explanation, while legally sufficient, did not address her feelings. The choice to photograph a woman on the street should not be taken lightly, and it should be done with awareness that the action might feel in context like one more in a series of harassing incidents (much as a man who offers a ”good morning” greeting was counted as a catcaller in a recent viral video).

There’s a famous ethics question created by Peter Drucker called the “Mirror Test”: What would the world be like to live in a world if everyone were to behave in the way I have?

This case exposes a flaw in that test. When engaging stakeholders and acknowledging your privilege, you must recognize that your point of view cannot be the only benchmark. A man taking a picture of a woman is not the same as a woman taking a picture of a man. My comfort level at being filmed by a stranger with a fancy camera may be different from that of a randomly selected Goodwill shopper.

Three solutions

So how can we respond? Here are some proposals.

Transparency
Be transparent before, during and after engagement.

  • Transparency before engagement — Let sources knows as quickly as possible, before filming if possible, what your intentions are and the media where your produce will appear. Appropriate dress, tone and behavior show your professionalism.
  • Transparency during — be polite, apologize for intruding and for any emotional discomfort (though not for taking the picture or video).
  • Transparency after — frame their stories in a sensitive way, invite them to review the work (though not to edit it), stand up for the project on social media.

Consider a new ethical hierarchy of who deserves privacy in public. Public servants doing public duties should have fewer expectations of privacy than a private citizen. Both intrusions should remain legal, but we can concede that one may be more ethical than the other.

Use less intrusive media. For example, if someone objects to being filmed, consider capturing their story via audio.

Context is essential, and you provide that on social media. Readers will evaluate the ethics of your work based on how it’s presented and why they think the information is being presented. That evaluation will include your social media statements as the reporter. Don’t tweet that your project is “journalistically devoid” and then, when a readers calls you out on that, say you’re half joking. Defending the value of your work is an ethical obligation. Your subjects take depictions of themselves seriously.

Should everybody follow these rules?

After all, perhaps the main reasons the public expects them is a concept of common courtesy, etiquette. Journalists used to be able to argue they deserved special consideration. When everyone is a journalist, it’s hard for people to grant journalists special exemptions.

One way you, the journalist, can distinguish yourself in this environment is by demonstrating a greater seriousness. You can express to subjects that you are willing to think harder about this subject than an amateur does. You can be transparent and willing to be held accountable. You may not be able to earn a source’s trust, but you can at least not make their day any worse, and thus you can avoid affecting the story.

re: imagine

John Strieder

Written by

Writer/editor/multimedia journalist in Oregon. DJs some, travels a bit

re: imagine

exploring journalism innovation, excellence and ethics

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