Photographers’ Rights – And Responsibilities

03 Jun

Nic Crocker is a retired Police Inspector and keen street photographer who has studied the law in relation to photographers’ rights and lectures on the subject.  As a professional standards investigator he has engaged with photographers subject to unreasonable police intervention.  Views expressed here are his alone and should not be considered those of the police service generally or any police agency in particular.  References/links are provided at the bottom of this blog.  You can follow Nic on twitter @nic_police. 

Photographing in public is activity that does not come without challenge, principally arising from photographers, the public, private security officials and even police officers lacking understanding of the legal position in the UK.  Both in my day job investigating public complaints against police officers and while shooting on the street I have encountered dangerous levels of ignorance.  It shouldn’t come as any surprise, we live in a world where increasingly the public gets its information from the mainstream and social media.  Skewed or half truths sink into the memory which over time become diluted.  Then in times of stress these memories are sought and incorrectly or incompletely retrieved from where they were parked.  Police officers are usually given little guidance in this area. Issues around photographing in public are generally covered by civil law and thus of little interest to the police except where it might infringe on issues of public protection or fear of crime.  I’ll return to that later.  Security officials guarding private property where the public are given access, such as shopping malls, sporting or entertainment venues, have limited training to exclude public photography in such private premises.  Guidance about what to do if the rules of the house are broken can be very scant, leading to unlawful seizure or detention.  Sometimes low levels of knowledge come into conflict with well-meaning officials intending to do right.  On other occasions downright belligerency or bullying can be the cause.

Is there a right to photograph in public or not?

acpoSo, to help us all is there a general rule of thumb about the right to photograph in public?  Happily the answer is ‘yes’.  In this country common law applies, as opposed to a bill of rights.  In general this means activity is lawful unless specifically outlawed by statute.  To reinforce the position the Association of Chief Police Officers (ACPO) Communication Advisory Group released tremendously helpful guidance to the media in 2010 (click here for the full document).  The guidance applies equally to the general public as well.  Of particular interest, the guidance states at para 4.38:

There are no powers prohibiting the taking of photographs, film or digital images in a public place.  Therefore, members of the public and press should not be prevented from doing so.

We need to cooperate with the media and amateur photographers.  They play a vital role as their images help us identify criminals.

We must acknowledge that citizen journalism is a feature of modern life and police officers are now photographed and filmed more than ever.  Unnecessarily restricting photography, whether for the casual tourist or professional is unacceptable and it undermines public confidence in the police service.

Once an image has been recorded, police can only seize the film or camera at the scene on the strictly limited grounds that it is suspected to contain evidence of a crime.  Once the photographer has left the scene, police can only seize images with a court order.  In the case of the media, the usual practice is to apply for a court order under the Police and Criminal Evidence Act for the production of the photograph or film footage.

I cannot help but write with the perspective of someone who has nearly 30 years of policing experience.  It allows me to see the reasons why sometimes police officers or security officials act as they do.  Sometimes they act on public concerns, sometimes following the responsibilities public policy or their employers place upon them.  That is not to say police/security get it right every time.  But I do approach this subject with a passionate interest in letting photographers exercise the rights they have.  We will look at what you should do if you come under challenge while shooting.  But first let’s refine that general right to photography that ACPO supports.

Considering Trespass

dog trespassWalking through the front door of a private house without invitation is an act almost everyone would agree is trespass.  Likewise walking off the street into a warehouse through an entrance marked ‘Goods Inwards’ would be regarded as unauthorised.  But it can be more difficult to judge what is private property.  Frequently photographers fail to recognise shopping centres as private property.  Despite the owners wanting you to enter and buy, it is very much on their terms.  Signs and security guards are there to deter any activity which the owners don’t want – in short, anything that disturbs shoppers.  Photographers wandering in and starting to shoot will undoubtedly be challenged and told to stop or escorted out.  Security officials have every right to do so.  They do not have the right to detain or demand to see or delete images however.  When I talk to students on this topic I always encourage them to keep in mind their top objectives – not getting arrested and not losing their shots!  If you’re not on the street and are challenged by premises managers or security officials you have little option but to be polite and leave.  Do explain your purpose in taking shots but do not offer to show the images and certainly do not yield to pressure to delete them.  If told you are being detained for the police understand that security officials have no power to do so unless they make a citizens arrest.  To do that there are two burdens of proof on a private security official.  They have to ‘know’, not suspect, that a criminal offence has taken place, plus they have to ‘know’, not suspect, that the person they are arresting is responsible.  This is a high burden and there will be plenty of security officials in shopping arcades up and down the land who will not have received significant training.  They may act with good intent but become lost when out of their professional skill sets. I have two suggestions to avoid the kind of conflict that may lead to security officials making mistakes which could inconvenience you.  Because in those circumstances nobody wins.  Firstly, if you are challenged accept your shoot is over.  Leave with your dignity – and your shots!  So if you have a good reason for wanting to get shots in a private area where the public are invited, such as shopping centres or sporting venues, why not ask for permission in advance?  Secondly, if you really don’t want to seek permission at least write a proposal for your shoot and have a copy on you at the time.  At least this way you can show some legitimacy of purpose if challenged.  Not sure how to write a proposal?  Click here for a 4 minute guide from coach Beate Chelette.

Screen Shot 2014-05-31 at 13.15.30Another thought on trespass.  If you are engaged in street photography you must be aware that not all of the ‘street’ is public.  Below is a shot I took while photographing a poverty demo in the City of London in 2013.  The police were on hand to facilitate lawful protest while ensuring public access was maintained on the highway, and to ensure that the business of a electricity generating company was not halted by criminal trespass.  Note closely where the officers have stood.  The public footpath stops where the curtilage to the company’s building starts. It is often denoted by a  change in paving block or even an iron rail set into the ground.  I wasn’t able to get the shot I wanted – one from behind the officer’s position, silhouetting them, because a friendly but firm sergeant stopped me.  Pulling rank was not an option!

 

Why do the police get involved with photographers if street photography is lawful?

stopI think you will agree the ACPO guidance can be described as concise, clear , unequivocal even.  So why is it not universally followed?  Why do some police officers get so worried about photographers?  I can answer the first question easily.  Few of the country’s 127,000 police officers have had sight of the ACPO guidance, let alone have had training on the subject.  The second question is more complex so I’ll address that in more detail.

There is no doubt police officers often feel uncomfortable being photographed.  Love ’em or hate ’em, the police have an often unenviable job.  Many are positive and professional, some not so.  Police officers have good and bad days like the rest of us.  High standards should be expected of officers because on their bad days it can be the general public that gets a lesser service.  There is a growing realisation and acceptance that officers in public will be photographed as they go about their work.  But that doesn’t mean they always have to like it.  Would you?

Looking past the personal reticence of officers to be the subject of professional and amateur shots, there are very reasonable professional reasons why photography in public can generate police interest.  We’ll look at those now.

Public Protection

Sex offenders have found advances in photography, computers and the internet of immense use to extend their perverted offending.  Many have been successfully exposed and prosecuted thanks to the criminal justice system matching those advances made by criminals.  As the world has become more sophisticated development of approaches to prevent offending against vulnerable groups, particularly children have been driven forward.  The public and private sector organisations who monitor public locations have been drafted into the ‘overwatch’ that contributes to child safeguarding in this country.  This has successfully helped authorities to identify offenders and protect victims.  It has also led to honest mistakes and on occasions witch hunts, see here a BBC news story where a hospital paediatrician was targeted by residents who thought the term paediatrician meant she was a child sex offender (paedophile).

Photographing children in a public area, such as a street or park, may well lead to public interest.  If reported to the police it will be likely to officers attending to ensure the public are not in danger.  They have a duty to do so but must also be expected to make any necessary enquiries discreetly and with proportionality.  A police officer has no automatic right to view your shots but if he has sufficient grounds to suspect an offence has occurred could seize a camera to establish if offences have occurred (Section 19, Police & Criminal Evidence Act).  So it makes sense not to ignore requests for information to reassure the officer that nothing is amiss.  It’s another reason I always advise photographers to properly plan shoots and take along a shoot proposal.  That proposal should risk assess for a variety of things that can go wrong, including people getting the wrong idea about what you are up to.  If an officer appears not to understand the law (it really is possible!) show him the documents I advise you to keep in your camera bag (see end of this blog).

Counter Terrorism

In England & Wales in 2012 245 people were arrested for terrorism related offences.  Unsurprisingly it remains a matter of immense concern for the police, charged with our protection.  But while terrorism remains of very real concern, fears of immediate attack have reduced.  Section 44 of the Terrorism Act 2000 has been removed, taking away from police officers the right to search people in some circumstances without a reasonable suspicion that they are committing offences.   Section 43 remains, allowing searches with reasonable suspicion.  There were 720 such searches in 2012 by the Metropolitan Police Service, a reduction of 41% on 2011.  The police service as a whole is seeking to be proportionate but individual officers can make mistakes.  Why should officers associate photography with terrorism?  Almost inevitably terrorism relies upon intelligence gathering in advance of an attack.  ‘Hostile Reconnaissance’ inevitably involves photography to accurately pass on information to those taking part in an attack to support effective implementation of the terrorist plan.  Photographing significant buildings or mass transit sites, particularly in London, will be likely to attract attention.  But you can and should expect any contact to be swift and un-intrusive, focused on simple reassurance that there is no cause for concern.  In fact you are more likely to encounter officers with effective training and awareness in the capital than elsewhere in the country.  My advice, give a quick explanation and listen to guidance provided, for instance if you are not in a public place or you are photographing at one of the small handful of locations in London which have protection under statute from being photographed.  If you want to shoot at a London Underground location contact TFL, click here for more information.  This may sound contentious, photographers like everyone else have the right to take photographs in public as ACPO has demonstrated.  Well you could stand and argue I (if I were challenged rudely I probably would stand and make my point) and let the time it takes for the conversation to increase – or you could accept there is a duty of care which the police service has to undertake.

Public Order

I am a keen street photographer and recently completed an ‘A’ Level in the subject, focusing on shooting demonstrations for one section.  I’ve also policed demonstrations and riots.  Large scale street action can be an exhilarating place to be but for the inexperienced understanding the changing mood in a crowd can be difficult to assess.  Legitimate protestors or others attracted to the locality to closely watch a demonstration can quickly find themselves thrust to the front line of a crowd and into direct confrontation with police officers tasked with preventing or containing disorder.

This video shows a demonstration in London.  Police reinforcements start to arrive noisily, which is likely to attract those nearby to find out what is going on.  The crowd is clearly excited and as confrontation builds the desire to capture this will  be strong in any enthusiastic street photographer.  But take note how the confrontation boils over into violence as one demonstrator is arrested.  My advice to any photographer trying to get close to the action in such circumstances is to take note as police officers become more direct in giving instructions and recognise it is time to back off and get the long lens by the time batons are drawn.  If you remain in the thick of the action understand that police tactics will on occasions cause delay.  You absolutely have the right to photograph police officers while they are engaged in tackling disorder.  But beware of falling under suspicion of obstructing the police or of causing an affray.  Ensure you remain the right side of shooting the story instead of becoming  the story.

I should  mention one further offence, Harassment.  Borne of the fear of stalking the Protection from Harassment Act an offence is created where a person commits a course of conduct which amounts to harassment, which he knows amounts to harassment (or ought to).  There is a defence that the course of conduct was reasonable.  Remembering the ACPO guidance, citizen journalism is recognised and respected, but if you repeatedly photograph a subject who is opposed to your actions the prospect of harassment arises.  Consideration would include what the subject has done to draw themselves to you as a point of interest but there must always be a limit to what inconvenience you put someone to.  If a photographer treats a general member of the public like a paparazzi target, they should expect their rights to be curtailed as the law protects them as you would expect a member of your family to be.  With rights come responsibilities.

 

Tactics when engaged by police

Some advice for photographers on the internet infers an aggressive or at least uncooperative approach.  I can understand the frustration that makes this attractive to some.  And for some photographers associated with particular causes they may find themselves focused on promoting the protest issue more than shooting from an independent perspective.  Just because a police or security officer asks you to account for yourself it does not mean you will be stopped from shooting.  They may just need to understand the circumstances.  If you are on private property it is likely you will have to stop, but other than that a reasonable approach is to explain.  If you think the officer is unreasonable by all means record the encounter, as happened in Gloucestershire (click here) and complain later.  But if you should come across unreasonable police/security officers I recommend the following:

  • show them your proposal/tell them your intentions
  • show them the documentation I suggest (below) you keep in your document to strengthen your explanation of the lawfulness of your act
  • if neither works, do not continue to confront what you cannot beat at that moment.  Don’t risk losing your freedom and/or your shots – instead play the longer game and seek redress later.

 

One last thought on safety

Harry MartinThe winter of 2013/14 produced some incredible storms.  Photographers captured some incredible shots of nature at its most ferocious.  Some put themselves in danger to do so.  18 year old Harry Martin, a Devon photography student went out alone onto coastal paths to capture shots.  He went alone and when Harry didn’t return a search was made more difficult because family and friends did not know what his plan had been.  It’s hard to contemplate just how hard it must have been on Harry’s family when his body was later found, having drowned as he succumbed to the appalling weather.  Think about risk.  What is the worst that could happen?  What is the likelihood of it happening?  What can you do to mitigate from those risks?  If something does go wrong who is going to realise it and will the authorities have a decent chance of looking in the right place.  Take great shots but don’t let them become your epitaph.

 

Conclusion

We have looked at the important rights that photographers are afforded in this country.  Enjoy and make use of those rights, understand those that have a duty to ensure the public are protected, and respect the public who provide so many wonderful images.  And don’t assume the same privileges are offered in other countries.  When you pack your passport I suggest you spend a little time researching the local rules (having been told off myself for photographing people taking ‘selfies’ in front of the Mona Lisa in the Louvre).

The following may assist you as you prepare for your street photography:

  • Let people know what you are doing, when and where
  • Pre-assess the location, consider a rendezvous point for friends, escape routes, alternative transport
  • What is the worst that could happen?  What is the likelihood of it actually happening?
  • Take identification & your proposal, help reassure anyone concerned about your activities
  • Review your photo objectives, stick to the overall plan
  • Talk through your plan with someone else.  Listen to their feedback
  • Take the right equipment
  • Consider your knowledge level, do you really have skills needed?

And keep getting those shots!

 

Some extra items for your camera bag

http://www.acpo.police.uk/documents/Communications/ACPO%20CAG%20guidance%202010%20Final.pdf

http://www.exposure47.co.uk/?p=4425&preview=true

Interesting Links

http://www.photographersrights.org.uk/index.html

http://www.digitalcameraworld.com/2012/04/14/photographers-rights-the-ultimate-guide/

http://www.urban75.org/photos/photographers-rights-and-the-law.html

http://www.amateurphotographer.co.uk/photo-news/535586/uk-photographers-rights-print-them-out-and-keep-them-handy

http://www.informationisbeautiful.net/2010/photographers-rights-in-the-uk/

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