Is It Time To Change the Laws on Street Photography?

There’s been some intense discussion in recent weeks as to whether freedom of expression gives photographers the right to be intrusive and disrespectful towards their subjects when photographing in public. Do the laws governing street photography need to be addressed, or does any change pose a threat to the First Amendment?

Tony and Chelsea Northrup dig deep into the topic in this video, exploring the practicalities of changing the law and the inadequacy of legal measures when it comes to governing ethics.

In 2016, the Georgia Court of Appeals decided that it was legal to take upskirt images in public spaces, prompting lengthy discussion of what constitutes the “reasonable expectation of privacy” described in the laws surrounding voyeurism. While upskirt photography clearly isn’t street photography, any rulings that address this definition could have implications for future decisions.

Personally, I believe that the legal issues should be secondary to a discussion about ethics and photography’s tendency to ennoble and celebrate intrusive photography on the grounds that it is justified as art or documentary. What happens in a public space must always have the potential to be documented, but this should not be an excuse for photographers to exploit vulnerable subjects simply because they can.

For me the question shouldn’t be “Do I have the right to take this photograph?” Instead, photographers should be asking “Do I respect the people that I’m photographing?” And if not, why not?

I look forward to your comments.

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53 Comments

Vincent Quantinet's picture

This is a non-discussion. As long as you’re polite and ask permission, 90%+ of people will be happy to be part of a frame. As for the aforementioned voyeurism, this is a totally different subject.

Brad Smith's picture

exactly. What this really is is stoppers just pushing clickbait in order to appear relevant.

Studio 403's picture

Ok, I get it. Intrusion, blah, blah. Give me a photo break. Like someone said, "it is forbidden to forbidden". It's America, shoot what ever is legal, do the right thing, get on with life. Always some bad battery types doing what most would not shoot. This post is a red herring. Moralism, as if all our lives are not invaded by tech folks. I live in a small area, so its not an issue with me. All we need is photography pharisees laying out the rules....I know you guys who did this post are far better at your craft than me and your work is stunning. Please keep it that way. I am 74. I get it, Sick of moralism that does not work, it's an inside job, not outside. My rant for today.

Michelle Maani's picture

Not everyone on this forum is in America. Not everywhere is like America, and you might find yourself in a lot of legal trouble if you take that attitude with you when you go to other countries. You are the epitome of the ugly American.

Studio 403's picture

Interesting, you judge me and without knowing me. I read the book the ugly American. I get it. I think you failed realize this is America but I was writing about. I noticed you don’t have any photos posted so I suspect you are a angry. Are you a photography troll or critic? I think you failed to see I said obey the law. However you might be the kind of person that likes authoritarian regimes. I hope not. Thank you for your perspective, the ugly American really I’m just overweight not ugly

Michelle Maani's picture

Whether or not I post photos on this forum has nothing to do with my feelings about the topic.

Scott Patterson's picture

Complete Nonsense.

Ivan Lantsov's picture

andy on tall horse

Mark Houston's picture

As an American Photographer...I think the last thing anyone needs is the various State Legislatures making laws to "control" photography in a public space. Nothing good would come of it.

Billy Paul's picture

I would rather the Northrups were banned.

AJ L's picture

Tony's inane argumentation is driving me nuts. Of course a legislature can ban upskirt photography without banning street photography. It doesn't even require a full page: https://apps.leg.wa.gov/rcw/default.aspx?cite=9A.44.115

Steve White's picture

A legislature can write a law against it but thanks to the first amendment that's not necessarily the same thing as banning it, especially when the law purports to offer a reasonable expectation of privacy to people who are in public. In the case of the WA law, either you don't have a reasonable expectation of privacy in places where somebody could easily manage an upskirt photo, or it's also illegal to view or photograph anybody, regardless of how they're dressed, if it titillates you. To me that says that either the law makes it illegal to ogle women at all, or you don't have a reasonable expectation of privacy in the aisles of Walmart.

AJ L's picture

A law like the Washington one is sufficient to prohibit upskirt photography. So is this one, which Georgia passed after the Publix incident, making Tony’s point moot: https://law.justia.com/codes/georgia/2017/title-16/chapter-11/article-3/...

Laws like these have already passed constitutional scrutiny in federal courts. They are not first amendment violations.

W Mitty's picture

While I don't really agree with Tony's argument because it would be nigh impossible to draw a line between allowable/unallowable, I think he has some valid points. I think "photographers" like Bruce Gilden, who ambush people on the street, are blatantly mercenary. I would feel very violated if he were to snap a photo of me because his motivation is obviously to startle people and catch them at their most vulnerable. It is not to find their humanity, but to embarrass them. It is not art. It is exploitation, with no discernible value that I can see. Were he to approach people the same way carrying a hammer instead of a camera, he would be arrested for assault.

Kirk Darling's picture

Most states in the US already have laws prohibiting photography that causes suffering, shame or humiliation. Sounds like what Bruce Gilden is doing would fall into that category...unless it doesn't and that's just personal opinion. Take him to court and see what a jury of "reasonable people" say about it.

Steve White's picture

Are all those perp walk photos of Harvey Weinstein or others illegal if they were taken instates with laws prohibiting photography that causes suffering, shame or humiliation? What about all the pictures on peopleofwalmart.com?

Kirk Darling's picture

The laws also cover cases where people are legitimately newsworthy (such as Weinstein)--that's no problem. "Redeeming social purpose" is a thing in such cases. Peopleofwalmart.com is not problem either because their appearance is how they intended to be seen.

Something like a publicized "upskirt" photo would fall into the category of causing " suffering, shame or humiliation," particularly when the individual is not newsworthy. Time is also a factor courts have considered: An embarrassing photo of a private citizen that was newsworthy at one time can become legally actionalble years later when someone dredges it up.

Jan Holler's picture

I admit, I did not watch the video as I learned from previous ones that those people mostly talk about things they did not really elaborate or understand. But com'on, it is time to get over Bruce Gilden. So many discussions about the subject refer to this photographer. It is pathetic! A camera is not a hammer, is not a weapon. And what art is, is simply not defined by you (or me) but only your very personal opinion.

Les Sucettes's picture

Because Bruce impacts 0.0000000001% of the world‘s population, we are having a discussion over the ethics of photography in public? I don’t even know who he is. I‘m sure he’s famous somewhere.

Give me a break!

W Mitty's picture

A break.

And Bernie Madoff only impacted 0.0000000001% of the world's population. So, we should also ignore what he did?*

I am not advocating any legal remedy. Gilden is one of the most well-known street photographers, and a member of Magnum Photos. I was using him as an example of someone who seemingly has little ethic when it comes to photography. And he is hardly alone. Think of all the paparazzi who hound people and violate their lives and personal spaces. One may argue that paparazzi are not "street photographers", but to me the only distinction is the fame of the subject.

My only point was that some street photographers don't abide by the social contract and act irresponsibly, and it is offensive and intimidating to some of their subjects. One would hope that everyone would respect others' dignity, but, alas, it doesn't seem so. I don't know that it is a fixable problem (or even a problem that should be fixed) but Tony was taking a particular view in this video, and I merely stated that he has some valid points.

*(Not to imply that Bernie Madoff and street photographers are in the same category, but that percentage is a facile argument for the validity of a topic.)

Alex Ragen's picture

Vile behavior is not an issue for legislators or the courts. It is possible to violate privacy in a public place. There is no constitutional right to be treated politely. Get over it.

Federico Guendel's picture

This whole subject is fun. In Europe, the law protects privacy to the point that you cannot publish someone’s likeness without their consent - regardless if you’re out in public spaces or not. I have no idea how this applies in street photography because I know the law has different enforcement. You can’t just take photos of people in the street and publish them. Now, you can just ask permission. As simple as that. If you have their portrait, they agreed to it. I love this law because it protects privacy, it protects you. And it poses some fun challenges into shooting in public spaces trying to avoid other people. And it makes you follow due protocol with permissions and all. It’s like a puzzle and in practice it’s not that bad.

Francis Drake's picture

"In Europe, the law protects privacy to the point that you cannot publish someone’s likeness without their consent - regardless if you’re out in public spaces or not."

Nope

In France consent is only required for commercial use. If it's art or journalism no consent required, but publication shouldn't hurt privacy. And that hurt has to be proven by the plaintiff.

If you were referring to the gpdr, the recital 51 explicitly says that any photo is NOT a biometric data as long as it is not processed to be one.

"The processing of photographs should not systematically be considered to be processing of special categories of personal data as they are covered by the definition of biometric data only when processed through a specific technical means allowing the unique identification or authentication of a natural person"

Andy Day's picture

"In Europe, the law protects privacy to the point that you cannot publish someone’s likeness without their consent - regardless if you’re out in public spaces or not."

This statement is completely false. https://commons.wikimedia.org/wiki/Commons:Country_specific_consent_requ...

Jan Holler's picture

As Francis said: Nope. Why would you claim such a statement if it simply isn't true at all? In Europe, I don't know if this is right for every single country here in Europe, but at most you can publish every photo as long as:

* it is taken in public areas, even if it was taken in semi-public areas (e.g. train stations), if it is allowed to take pictures there.

* the person in your picture is not depicted in a way that violates their dignity.

* If there are no special interests against it, such as photos of secret agents, military, police and the like.

France plans to introduce a law prohibiting the taking of photographs or videos of police officers. We have all witnessed the great protests and the subsequent riots of the last few days. Because at that time, a video about the brutality of the police was accidentally shown to the public.

Brahm Sterling's picture

France is worse than England.
Paparazzi in NYC is nowhere near as disgusting.

Lee Christiansen's picture

Federico's statement is so wrong on sooo many levels I don't quite know where to begin...

Les Sucettes's picture

You‘re starting to sound like Emmanuel Macron

TRUE LIBERTY's picture

The government doesn’t like the competition of being a spy on the streets. 😂 Anyways this is a nonsense discussion and none of the governments business.

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