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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51 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.

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.

Javier Gutierrez's picture

Preach !!!

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.

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.

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.

Deleted Account'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.

Deleted Account'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!

Deleted Account'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...

Deleted Account'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.

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.

Douglas Goodhill's picture

I use a 4x5 view camera for my street photography, and most people just wander off before exposure. Thank God.

Gerry O'Brien's picture

In America, numerous federal court decisions over the past century have clearly stated that "there is no expectation of privacy in a public space." Legislate all you want; the courts will overturn it.

Jim Hawkins's picture

LoL! No.

Timothy Roper's picture

I don't care what Tony or Chelsea think--about anything. They're basically trolls at this point.

William Nicholson's picture

Put a few billion cameras in smart phones and lets just see what comes about. Tony and Chelsea just need to come to light and stop their over parenting. No matter where you walk, drive, eat, shop and so forth you have no privacy thanks to video cameras every where. So what is the difference between the government watching you or some wannabe rolling video on their cell phone with a 99.9% chance they will post it to some social platform. Yea yea yea, we all have opinions what is right and wrong and yet no one has any right to public privacy. If you could sue someone for taking a picture or video of you, well you are going to be suing a butt load of people and government agencies. I agree with Vincent Quantinet - as long as you are polite and ask there should be no problem if you are out there doing street/people photos. No social platform would survive if billions did not have a camera/video cell phone. If you are an honest and respectful person then you know what the limits should be and know better than sticking a camera up a ladies skirt for cheap thrills. Keep it clean and honest.

Brahm Sterling's picture

"upskirt photography clearly isn’t street photography"

Thank you for deciding what "street photography" is for us.

As far as I am concerned, anything taken on the streets or streets are in the frame is street photography, rural or urban, aerial it upskirt.

Steve White's picture

Fair enough but more importantly, it's problematic to ban specific types of photography that are done in public places. Our reasonable expectation of privacy is much broader in relation to the 4th amendment than to the 1st amendment.

Brahm Sterling's picture

Take a photo of me. Great, have fun. Print it out and give it to friends or hang it on a wall.

Take a photo of me that is either safe or embarrassing and then the photographer makes money off of it? Different story. I should get profit as well. I never consented or signed a contract.

Difference between freedom to take photos in public as opposed to freedom to gain profit at your expense.

Scott Kiekbusch's picture

In our next video we'll debate whether or not it's high time to ban all cars because they cause pollution and many drivers get into accidents that could hurt or kill other people...

Les Sucettes's picture

Let’s just prevent life and go straight to death

Les Sucettes's picture

Tony and Chelsea chiming in on Street Photography.

😂

Andrew Carroll's picture

Talking about 'ethics' in this conversation, reminds me of the 'ethical' decision of Instagram to ban inclusion of female nipples in photos. If we discuss what makes this ethical, what ground is this ethics based on? Christianity? Humanism? Postmodern nihilism? Certainly not Paganism. Personally I find Instagram's nipple-policy obscurely religious and conservative in flavour. Which ethics does the guy mean in this video? The ethics espoused seem to be morally dependant on others, not on what the individual photographer judges to be ok.

He wants to change THE FIRST AMENDMENT?? Bringing these ideological arguments into the discussion on Street Photography is allowed of course, but look - you can have photographs of real life or ideological photos, and we know which art has always been superior, historically speaking.

Is Street Photography a historical endeavour???Cartier-Bresson said that "information has nothing to do with culture or imagination", showing that he believed Street Photography was cultural and imaginal, primarily, as the information he was referring to was a caption telling what the photo was taken of - he preferred to leave that information out.

Maat Chu's picture

They claim it's all child protection.. as if children are harmed by nipples.. children are the reason nipples exist.. I think it's to protect old angry losers..

Maat Chu's picture

Well most people will try to kill you for taking a picture of them anyway. Even if you're being paid to do it on a job.. can't understand how violating someone's privacy by taking a picture under their clothes is legal.. is that like peeping? You can't go take pictures in people's bedroom windows so why can you peek up their dress? I think the judge missed the mark there. Does this mean people do not have expectation of their body not to be violated if they're in public? The mob can just do whatever they want to you because you're not in your house? Does the constitution only apply in your house? I think recently we're all losing the plot on what civil rights mean.. looking for any loophole to violate other people. Oh so can I hurt people if I do this? Oh well what about this? No you don't get to hurt people. Stop asking... And no having your picture taken doesn't hurt you.. so stop complaining and stop being one of those people who thinks you get to hurt someone because they take pictures for a living. THATS what we should be having the discussion about. The modern trend of hating photographers. People who think you need their permission to take their picture. People who ruin pictures and instead of smiling they start a federal case over what the pictures are being used for. THAT needs to stop. I can be hired on a job and have half the people trying to politely ask me to leave and because I have to remain professional it's like I'm almost supposed to obey them.. THATS not ok..

Bill Benson's picture

This is approaching very dangerous territory. But let's not be ridiculous and say things like upskirt should be allowed that clearly goes against everyone's definition of reasonable expectation of privacy.

The rest? Okay let's ask ourselves, does someone's rights stop with someone else's feelings? Well, to me, that answer is clearly no. While some photographers may be overly obnoxious and there are certainly some obnoxious First Amendment Auditors.

The thought of getting ones permission or even asking for permission to me is ludicrous. Are you going to chase down everybody when you do a crowd scene or be first to blur everyone's face at a concert? When an elected official gives a speech and security is nearby do we need to get securities okay to be in the same picture with whomever we want to photograph?

The second a rule like that is passed until thrown out on constitutionality grounds anytime someone wants to record and interaction that needs to be recorded/photographed people could start to second guess themselves or be worried that they can be convicted of a crime.

Should George Holliday have stopped to ask the officers permission while they were beating Rodney King? Do we need to be sensitive to the feelings of those officers? Granted my example is extreme but even a law passed with good intent I foresee that as an unintended consequence and indeed is where it would be most used.

Constantine Lykiard's picture

Here is the thing, if my mind's eye has seen and inevitably has stored it in my brains storage bank what is the issue with recording it on my SD card? Surely it is to do with what I do afterwards that is at issue. As a society we have moved further away from written or spoken expression and closer to use of pictorial tools. In the past one could describe vividly graphically something recorded through their mind's eye. Now they are sharing it through a bunch of pixels. I am not in anyway suggesting that we stick cameras up people's skirts but because there are some idiots around that doesn't mean that recording life should now be out of bounds.

Pitter Brayan's picture

Tony's inane argumentation is driving me nuts...

Mario CRESPI's picture

Just what the camera industry needs.
A 𝗙𝗟𝗮𝗪𝗲𝗗 [𝘍𝘢𝘳 𝘓𝘦𝘧𝘵 𝘞𝘢𝘯𝘯𝘢𝘣𝘦𝘦 𝘋𝘪𝘤𝘵𝘢𝘵𝘰𝘳] ruining street photography in the US [like they do with everything they get their hands on.]
It is illogical to expect privacy in a public place as long as a 𝗿𝗲𝗮𝘀𝗼𝗻𝗮𝗯𝗹𝗲 𝗲𝘅𝗽𝗲𝗰𝘁𝗮𝘁𝗶𝗼𝗻 𝗼𝗳 𝘁𝗵𝗮𝘁 𝗽𝗿𝗶𝘃𝗮𝗰𝘆 is not violated.
Certainly, a camera should not be used as a weapon aimed at a particular person as if they were a target to bully.
A reasonable expectation of privacy means not being harassed with a camera pointing up our noses. Unless you are a public person who probably likes the attention, every scene in free public space is valid.
it would be foolish to expect people to be looking elsewhere at no one, walking on the street exclusively looking straight down at the pavement [which is only required in Paris to not step on the poop of an entitled pooch.]

Ron W.'s picture

Although Tony's position seems to strike a good balance between street photographers' wants or rights and individual privacy rights, I'm afraid it might not be practicable.

First, in this mistrustful, litigious age, I can't see more than a small percentage of people consenting to the taking or keeping of their photograph in the first place.

Whether I'm right or wrong on this, as an attorney, I could not advise a photographer client to rely on mere verbal consent. People tend to forget (actually or "conveniently") that they gave verbal consent, or they change their minds after the fact. In either case, they later deny that they gave such verbal consent (especially after consultation with a contingent fee attorney and getting a whiff of some easy money).

With this in mind, I would advise the photographer to get a signed, written consent (lots of simple half-page forms available online). But if you actually ask a subject to sign a consent form in writing, your chances of getting a refusal of consent skyrocket.

I'm not disagreeing with either Tony or Chelsea -- both make good points. But after 40+ years experience practicing law, I see some practical issues with respect to liability.

Stephen Nolly's picture

The idea that they think the line is drawn at "making fun of someone" is ludicrous and outrageously unconstitutional.
The First Amendment SPECIFICALLY protects SATIRE.
Freedom of Speech is the FIRST Amendment and it is intended to protect UNPOPULAR speech, ie people expressing themselves in a way that most people don't like. Popular speech doesn't need protection.

Stephen Nolly's picture

And what about Security Cameras? What if a robber DEMANDS that his image be deleted from the camera? According to the proposed Northrup laws, they have that right.

Dago Pineda's picture

My lord; the example presented is not; at least in my book, street photography. It is obvious that the intention here was to generate a discussion. Street photography; when done artfully, like any other type of photography, is one of the most popular.

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