The specifics of the incident are not particularly relevant - briefly, a woman took offence that I had taken her photograph as she stood at a bus stop. I greeted her and her companion, smiled and walked on. She followed me and confronted and threatened me in aggressive tones. "After a few minutes in which I attempted to explain street photography and the legality of the situation to her I walked away leaving this unpleasant individual muttering "Did I know who she was?" and similar absurdities.
So here's the low down on the legality of street photography in South Africa.
I will divide this into two aspects - first, the act of taking the photograph and second, the uses of that photograph.
The act of public photographyIn South Africa any person can take a photograph that includes any other person without permission.
Yes that's right, a person does not need your permission to take your photograph if the photographer is standing on public property when she does so. You may be standing on private property, let's say in your garden or drinking a cup of coffee at your living room window, and a person walking past on the public thoroughfare may take your photograph without your permission.
There are some exceptions to this. I may not take your photograph in circumstances where a reasonable person could be expected to believe that she has a right to privacy. For example a photographer may not take your photograph in a public lavatory or in a public changing booth at the beach. Similarly if you are in your living room with the curtains drawn enjoying your coffee and a photographer stands on the public thoroughfare and moves the curtain aside with a long stick and takes your photograph, this would be deemed an illegal act as your curtains were drawn on your own property and the reasonable person could expect privacy under those conditions. Similarly, the recently publicized phenomenon of "upskirting" where deviant individuals use small or hidden cameras, often in conjunction with mirrors, to make video and still images of women's underwear beneath dresses and skirts in public places is an illegal act. Please note that this practice can in no way be regarded as street photography.
Another exception has to do with national key-points. A national key-point is a building, place or structure that is deemed critical to secure government operation. No photographer may take a photograph of a national key point. An example is the Treasury building in St George's Mall in Cape Town. If you stand in front of that building and I take a photograph of you, call the police immediately and they will arrest me. Not because you are in the photograph though. They'll take me away because of the building. Another key-point is Zuma's Nkhandla.
However, if you are standing at a bus stop or walking on the street or sitting on the terrace of a restaurant or running to catch the train, or staring out of the window of your office onto the pavement outside another person may take your photograph without your consent. And there's a strong possibility that in Cape Town, that person may be me.
Uses of the photograph
So, having made the image of you walking on the streets of Cape Town, by law I am now the legal owner of that photograph and as such I can do quite a few things with it. Similarly there are quite a few things I can't do.
I CAN use the photo for artistic purposes. So, for example, I can legally publish your photograph on my photo blog as this is for an artistic purpose. From time to time and hopefully with increasing frequency I might hold an exhibition in a local art gallery. I am allowed to do that. In addition, if some collector of street photography buys one of the prints at this exhibition I am allowed to sell him that print without your permission.
I CAN allow the photograph to be published in a magazine, newspaper, website, on television or any other public media for editorial purposes. So that photograph of you looking out over Cape Town from the top of Lion's head that a photojounralist took without your consent can be used, again without your consent, to accompany an article in the Times about how nice it is to climb Lion's head.
I CANNOT however use your photograph for a commercial purpose. This means that I cannot use your likeness to imply your endorsement of any product or service or as an aid in advertising any product or service. So that great snapshot of you on Lion's head may not be used by a travel agency to advertise the attractions of Cape Town and the expertise with which their guide will lead you on an expedition to climb Lion's head. If I want to use the photograph of you (remember it's my photograph because I made it) for such a purpose I need you to sign a model release which gives me permission to do so. Typically you would charge me for your signature on that document.
I also CANNOT use this photograph of you in any way that misrepresents you. That is to say I cannot publish the photograph in a context that indicates that you are cheating on your spouse for example (unless you are and my photograph caught you in the act) or that directly states or implies anything about you that is untrue. Such an act constitutes an act of libel and this means that you have legal recourse against me.
Privacy, society and the public space
Shock horror I hear you cry, how can this be? What about my right to privacy? To an extent, and subject to the caveats above, when in public spaces a person is deemed to have waived the right to privacy.
This is a necessary sacrifice.
Consider that we are living in a democracy. Democracies rely on the free-flow of information. For a democracy to function what happens in the public arena is a matter of public record. If a democracy were to pass laws prohibiting the candid photography of persons in public spaces it would open the door to secrecy. It would become illegal for a freelance journalist to take a photograph of a parade for example, or to photograph the activities of the police in their interactions with the public.
Consider too that in most urban centers we are all under near constant photographic surveillance. LAw enforcement agencies are doing this, banks, private companies all point cameras at the general public as we make our way through the public space all the time. A law prohibiting the imaging of public persons would necessitate exceptions to allow this arguably necessary surveillance and on what basis would that privilege be granted and who would make the decisions. Who is to say that some persons may make images in public and others may not?
I would also invite you to consider how impoverished a society which prohibited the recording of it's ordinary everyday public life would become. Imagine a society in which we did not know what the streets of London looked like in 1900, what clothes the people wore, what vehicles were on the street, how people comported themselves.
Ethics and street photography in South Africa
Only very occasionally do I ask permission for a photograph. I usually do this when I see that the quality of the image will be greater if the subject is given an opportunity to pose or I would like to take some time to position the subject against a particular background. I have been declined in such circumstances and I then challenge the no and attempt to persuade the person. Very often I'm able to convince the subject that my motives are positive.
Most of the time however, my subjects don't even realize that I've taken their photograph.
When they do notice, I smile and greet. If I'm approached by the person I will be friendly and open about what I'm doing. I usually have a small card that explains who I am and refers to this blog which I will give to a subject if they are interested. I have had many lovely encounters with people from all walks of life. Street vendors, business people, parents of children I've shot. Sometimes people ask for a copy of the photo in which case I invite them to send me an email and I then use drop box to send them a high resolution copy.
By far and away the majority of people respond in this way. Some people see me, are initially confused about what I'm doing but when I explain, are interested and friendly. Last week my eye fell on the charismatic face of a woman leaning out of a doorway. I was immediately attracted to a look of wistful amusement on her face. She may have been day dreaming or perhaps remembering something fondly, I caught the expression in a frame and the moment I did so she saw me. "Oh no" she said and laughed, "Please this is holy ground" and she pointed to her head. I hadn't realized that she was standing in a building attached to a mosque. I nodded my head to her and sadly deleted the photo.
In publishing photographs I am careful to ensure that that I do not impugn the subject. I have in the past discarded photographs that indirectly imply negative character traits or socially unacceptable behaviour where none existed. I attempt through my street photography to make intelligent commentary on the society we live in, to record the history of this current time in an interesting and aesthetically pleasing way, to portray the people of Cape Town in an accurate and respectful manner.
This is an ethic that street photographers almost universally subscribe to and follow.
Dealing with unpleasant encounters
Occasionally however, somebody launches themselves at me with outrage and some incorrect understanding that they are in possession of some moral high ground. My usual response to such encounters which are relatively infrequent, is to as calmly as I can in the face of aggression, explain a summary of this article. If that doesn't calm them down I try to move off as quickly as I can.
To any of those individuals please be aware of the following;
- I have broken no law by making a photograph of you
- I am under no obligation to explain to you what I am doing or why I am doing it
- I am under no obligation to show you the photograph I have made
- I am under no obligation to identify myself to you
- The photograph I have made is legally my property
- Although I don't do it, I am fully within my rights to continue making photographs of you while you are in conversation with me.
- If you attempt to physically restrain me from doing so by touching my person, you are breaking the law. If you do not wish to be photographed the only legal way you can prevent it is to move away from the scene.
- If you threaten me physically you are breaking the law.
So, if I take your photograph on the streets of Cape Town, please do feel free to approach me and chat. If you approach me in a friendly and open manner I will introduce myself to you and offer you a copy of the photograph. If you want to pose for me I will almost definitely take you up on the offer. We'll have a pleasant encounter that will introduce a slice of humour and a frisson of something out of the ordinary into your day and you may even walk away with an interesting, well-composed, perhaps even thought provoking portrait of yourself.
However, if you are narrow-minded, regard what I'm doing as somehow deviant or are simply spoiling for a fight, get out of my way, I'm making art.
Disclaimer - while to the best of my knowledge the information regarding the law as it applies to photography in South Africa is correct at the time of publication I am not a lawyer. This article is my personal interpretation of the law written as a lay-person and should in no way be construed as legal advice. I accept no responsibility for any damage that arises from your use of the information published here.