Photographing Strangers: Yes or no?
Have you tried street photography? How do you feel about taking photos of people you haven’t met who are just going about their daily lives? Does it make a difference if you are on holiday? How do you feel if someone takes a photo of you?
The legal position
The law stacks up the photographer’s freedom of expression and the notion of public interest on one side and the individual’s right to privacy on the other. The balance comes down differently around the world with some countries favouring freedom of expression and others prioritising the right to privacy. Before you publish a photo of an identifiable person without their consent, you should check the law.
The situation is confusing for the photographer as some countries have their law written down and reasonably clear (eg. Spain) whereas others rely on case law or broader principles which are much less clear (eg. France).
This Wikimedia Commons page has a summary of country-specific guidance. You should always take your own legal advice as the law changes regularly and I have no idea how accurate the Wikimedia Commons advice is.
In many countries the law is different depending on whether you are in a public or private place. Don’t forget that what seems like a public place (eg the gardens in a museum) may be privately owned.
Lastly, the legal position usually depends on what you do with the image: are you going to publish it? Are you publishing in as an expression of fine art, as an editorial comment, or in an advertisement? The balance usually tips towards the photographer’s freedom of expression in the case of fine art, to the notion of public interest for news or editorial, and favours the individual’s right to privacy in the case of adverts. But each country and each case will be different so please check your own situation before you publish.
The moral position
Just because it’s legal doesn’t mean it’s right. I think we owe each other a bit of common courtesy. Ask people before you take their photo. Or at the very least show it to them afterwards and check it’s OK to keep it. If they say no, then respect that. And use your own judgment: the world is changing and what the previous generation of photographers thought was acceptable isn’t necessarily the case any more.
I went to a talk from a decorated photographer (a Fellow of the Royal Photographic Society) who bragged that he could always get someone to agree to have their photograph taken. Apparently he had a sixth sense that meant he could tell when someone’s “No thank you” meant “Yes please”. Honestly. He said, “I can tell when No means Yes and I just keep asking until I get a Yes.” Most of the shots he showed us were women and girls. It made my skin crawl.
What about if there is a language barrier? In my opinion, if you can’t explain what you’re doing and what you’ll do with the photos, then you can’t get informed consent. You’ll make your own judgment about whether your right to express your art is more important than someone’s right to privacy, but please do consider it.
Historical record
I hope the balance doesn’t swing too far towards the right to privacy otherwise future generations will have no visual record of what we looked like when we weren’t posing for Instagram selfies.
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