Monday, 12 December 2011
Illegal to photograph?
In France, I've been told, it is is illegal to photograph someone in the street without getting their permission. I've been told that but I've seen several examples of people who didn't want to be photographed being videoed in Paris and there is no legal or ethical difference between photography and video except video is more intrusive because it includes sound recording (and is regulated a little bit more stringently in some places).
In Britain I've had the police quote anti terrorism legislation at me as a reason for not videoing them and once a couple of likely lads in police uniform actually said I was banned under the Data Protection Act because video is stored electronically. The Data Protection Act might give the police the right to inspect my data, it doesn't stop me videoing them.
Of course, there is legislation designed to stop Paparazzi from poking their lenses into the lives of celebrities and others. Here the basic rule is if somebody asks you to stop you better have a pretty good reason not to. But this legislation is really designed to prevent repeated intrusions, the photographic equivalent of stalking.
Many years ago a guy called Lord Robert Peel formed a national police force because the nightwatchmen and security guards who made up the bulk of the thin blue line at the time, were thought to be ill equipped to police a modern society. But that was in the relatively enlightened mid Victorian era. In the 21st century we have a huge proliferation of poorly trained and ill equipped policing groups. Some call them the Noddy Police.
Given half a chance most of these people (the one in the video above is from the Lea Valley Regional Park Authority police) will tell you to stop videoing them and pretty much anything else as well. Yet the authorities these Noddy Police work for are often quite happy to point CCTV cameras at anyone doing anything.
In America a number of unflattering images of police treatment of protestors have been broadcast recently. There was the campus police officer (a US equivalent of a Noddy?) who casually pepper sprayed apparently peaceful people sitting on the pavement and the New York women pepper sprayed by a cop even when they were trapped.
The police may believe they can use the might of the law to stop their actions being scrutinised, but the truth is the genie is not going to go back in the bottle.
In America two out of three people have digital cameras and something like one in three have a phone that can record and transmit digital images. Anyone can put these images on Facebook or Youtube and there are other more specialist services such as the Copwatch web site.
In most parts of America (as in Britain) there is little doubt that you have a right to photograph people in public places, even police officers.
But it becomes more complex if you are videoing. There are 12 states of America in which it is illegal to make sound recordings unless all parties agree, though they usually have to prove they had reasonable grounds for believing that what they said was private. Even in these states it's hard to believe the police could prevent you videoing them at work since not much policing is carried out privately, or at least not much of the sort anyone is likely to video.
In one case brought under the Illinois Eavesdropping Act a judge ventured the opinion that a police officer might expect conversations with a confidential informant to be kept secret.
A recent documentary about Syria considered thousands of online videos showing anti regime activity or street violence. If such a huge amount of material could emerge from Syria there is no way of stopping the videoing of police (Noddy or otherwise) in Europe or America.
*Some of the facts (though none of the mistakes) in this blog originated from an article headed "Don't shoot" on page 47 of The Economist of December 10, 2011. http://www.economist.com/node/21541467
This is a post from Shooting People on the subject:
From: Benetta Adamson
"Waivers" or "consent forms" (which is what UK broadcasters would call them)
exist for a couple of reasons, and those are really to guide a documentary
maker in ensuring that they're treating their contributors fairly and within the
law of the land.
There's no secret about Ofcom guidelines: it's all there on their website
under the heading "Broadcasting Code". The BBC and Channel 4 make theirs
accessible to anyone (search "Editorial Guidelines" or "Compliance"); they're
closely based on the Ofcom Code and the procedures for referring up the
editorial chain are all set out. So the rules on "secret filming" are very clear,
for instance: you have to seek senior editorial consent before embarking on
such filming, or as soon as possible afterwards if it wasn't anticipated.
The presence of a signed consent form is an indication that a contributor has
agreed to take part in a programme and that the nature of his or her part in
the finished piece has been explained to him or her. If a legal dispute were
to arise then the consent form would be introduced as evidence that proper
informed consent was given; it's not a legal document in the sense that a
contract of sale might be, but it's a vital piece of evidence.
I feel that rather than regarding consent forms as some sort of bureaucratic
hazard put there to trip you up, it's much better to think of them as the
ultimate expression of the contract of trust that you have with a contributor.
If that's honest and open then you're unlikely to get into trouble. And if
you're doing something which involves misleading a contributor, such as in
secret filming, then you're very well advised to check on what the law *and*
the ethical code says before you embark on it.
Maybe this seems irrelevant if your film isn't being made for broadcast or
theatrical release, but I'd say that treating your contributors fairly should be a
habit anyway. And if your private ugly duckling suddenly turns into a swan,
wouldn't you like to be able to offer it to a wider audience?
By the way, anyone who has worked with Discovery or other US networks
knows that they are far far more exigent about compliance than anyone in
the UK. It isn't just us...
This is the relevant section of the OFCOM code. It does not require consent forms:
Issue Four: 16 December 2009
Section 8: Privacy
Issue Four: 16 December 2009
This guidance is provided to assist broadcasters in interpreting and applying the Broadcasting Code. Research which is relevant to this section of the Broadcasting Code is indicated below.
Every complaint or case will be dealt with on a case by case basis according to the individual facts of the case.
We draw broadcasters’ attention to the legislative background of the Code which explains that:
“Broadcasters are reminded of the legislative background that has informed the rules, of the principles that apply to each section, the meanings given by Ofcom and of the guidance issued by Ofcom, all of which may be relevant in interpreting and applying the Code. No rule should be read in isolation but within the context of the whole Code including the headings, cross references and other linking text.”
Practice to follow 8.1 An infringement of privacy in connection with obtaining material
Ofcom may only consider an infringement of privacy in the making of a programme if the programme is broadcast.
Private lives, public places and legitimate expectation of privacy
Privacy is least likely to be infringed in a public place. Property that is privately owned, as are, for example, railway stations and shops, can be a public place if readily accessible to the public. However, there may be circumstances where people can reasonably expect a degree of privacy even in a public place. The degree will always be dependent on the circumstances.
Some activities and conditions may be of such a private nature that filming, even in a public place where there was normally no reasonable expectation of privacy, could involve an infringement of privacy. For example, a child in state of undress, someone with disfiguring medical condition or CCTV footage of suicide attempt.
Issue Four: 16 December 2009
Practice to follow 8.11 Doorstepping
Doorstepping may be used (depending on the circumstances) where there has been repeated refusal to grant an interview (or a history of such refusals) or the risk exists that a protagonist might disappear. In such circumstances, broadcaster may themselves require programme-makers to refer to the responsible editor first.
Doorstepping in public places is most frequently and in most circumstances acceptably used in news programmes, where journalists often film and record those in the news without having pre-arranged the interview.
Practice to follow 8.12 Telephone calls
It is acceptable to record telephone calls for note taking purposes.
Practice to follow 8.13 Surreptitious filming or recording
Broadcasters normally have their own procedures in place to authorise such filming or recording. In such circumstances, broadcaster may themselves require programme-makers to refer to the responsible editor first.
Practice to follow 8.14 The broadcast of material gained by surreptitious filming and recording
When broadcasting material is obtained surreptitiously, whether in a public or private place, broadcasters should take care not to infringe the privacy of bystanders who may be caught inadvertently in the recording e.g. by obscuring the identity of those recorded incidentally.
Broadcasters should be aware that ‘innocent’ bystanders can be inadvertently caught (potentially causing an unwarranted infringement of privacy) with the transmission of material gained through surreptitious filming or recording.
Broadcasters should apply the same practice to follow to material shot surreptitiously by others (including CCTV footage) as they do to their own recordings in taking the decision whether to broadcast the material.
Practice to follow 8.16 People caught up in emergencies, victims of accidents, or those suffering a personal tragedy
As has been explained in the foreword to Section Eight: “there may be a strong public interest in reporting on an emergency situation as it occurs and ...there may be pressures on broadcasters at the scene of a disaster or emergency that may make it difficult to judge at the time whether filming or recording is an unwarrantable infringement of privacy. These are factors Ofcom will take into account when adjudicating on complaints.” For instance, when news crews arrive at the scene of emergencies etc, they often film and record as much
Issue Four: 16 December 2009
information as possible (which could result in infringements of privacy). However, it is then later, when the broadcaster actually transmits the footage that appropriate decisions can be made in an edit suite in the ’cold light of day’. Ofcom has a statutory duty to consider unwarranted invasions of privacy irrespective of the circumstances and genre of programmes. Nevertheless, in the light of a complaint, Ofcom will always take the full circumstances into account as well as the context in which the original footage was obtained.
At funerals, programme-makers should respect requests that they should withdraw.
Broadcasters should also respect any reasonable arrangements made by the emergency services to supervise media access to victims of crime or accident or disaster, or their relatives, in the immediate aftermath of a tragedy.
Practice to follow 8.17 People in a state of distress
Even if grieving people have been named or suggested for interview by the police or other authorities broadcasters and programme makers will need to make their own judgements as to whether an approach to such people to ask them to participate in a programme or provide interviews may infringe their privacy.
Practice to follow 8.22 Persons under the age of sixteen and vulnerable people
A child of five has a very different view and understanding of the world around it than a 15 year old teenager has. Questions need to be appropriate to both age and development whether the child or young person is taking part in a factual programme or an entertainment programme.
Care must be taken to not to prompt children and that they should be allowed to speak for themselves. Questioning that is likely to cause distress should be kept to a minimum.