No, New Laws Preventing Photographs of Breastfeeding Are Not an Assault on Photography

The U.K. government has announced that it will soon be a crime to photograph mothers breastfeeding their children in public. Limiting the right to photograph in public places could be seen as an attack on freedom of expression, so is this law justified?

A campaign led by mother Julia Cooper has prompted a proposal for legislation as part of the Police, Crime, Sentencing and Courts Bill that is currently being discussed by the U.K. Parliament. As noted by Justice Secretary Dominic Raab, the new laws would help to prevent women from being “pestered, whether it’s for self-gratification or for harassment purposes.”

MP Stella Creasy celebrated the announcement, tweeting:

While women who have experienced harassment will welcome the move, some will question whether this is another small step towards prohibiting freedom of expression and shifting the widely-accepted expectation that if you are in a public place, you can be seen and documented, regardless of what you are doing. Government attempts to place restrictions on what can and cannot be documented in public are regularly met with opposition, often seen as creeping criminalization that can gather pace unless they are fought at every step.

Understandably, photographers can instinctively become defensive when their freedom to create images is under threat. Some use the right to photograph in public as an excuse for intrusive, inappropriate behavior, justifying the harassment through claims of artistic expression, or simply because they are entitled to do it. For them, the legal entitlement outweighs any ethical concerns, and the art world has a habit of celebrating these artists for being brave and edgy. If there are laws against photographing women as they breastfeed, is there a risk that intrusive photography targeting women more generally might be next on the list?

Holding a camera does not change someone’s justification for behaving inappropriately. If someone were in the bushes with a pair of binoculars and clearly picking out women in a park that were breastfeeding, most citizens would expect the law to intervene. Swapping those binoculars for a camera doesn’t mean that the behavior is suddenly justified. Furthermore, cameras — whether it’s a huge DSLR with a telephoto lens or a smartphone held in someone’s face — can be used as tools for harassment and abuse. Simply because these tools can produce art or journalism does not by default override a person’s use of those tools to deliberately harass someone.

Headlines such as “photographing breastfeeding to be made illegal” and Creasy’s tweet aren’t helpful as the details of this legislation reveal that this is not a blanket ban. For example, if a mother is breastfeeding at a protest or a rally and is included in a photograph of a broader scene, the photographer is not suddenly going to be charged with an offense. The law is written to be quite specific: for a photographer to be deemed guilty, they “must be acting for the purpose of obtaining sexual gratification or of humiliating, alarming, or distressing the victim.” The camera and the photograph do not determine whether a crime is committed; instead, it is the behavior and the intent.

Whether intent can be proven will be down to a court to decide. Photographer and law student Martin McNeil offered me his thoughts. As part of a conversation on whether this legislation can exempt certain situations, McNeil pointed out that it’s “worth keeping in mind that laws are written by lawyers with the express intention of being interpreted by other lawyers and the judiciary. Anything not expressly stated is thus open to extremely wide debate and could be problematic for someone down the line.”

Legal restrictions on the freedom to document through any medium should be fought, but in this instance, it’s worth looking beyond the headlines and tweets and examining what this legislation means and the protection that it affords women and those breastfeeding in public. It remains to be seen how this legislation is interpreted, but it's worth noting: documenting is not the crime, harassment is.