What’s Your Preference?

uvsub · #1 (**permalink**) 07-05-2007, 01:28 AM

You may have already heard about this. As I prepare a trip to visit family and do some photography tourism, I was surprised to learn that Quebec has a privacy law that protects everyone from unsollicited photography.

You are expected to ask for permission of anyone who figures in your shots. The only condition being if they are part of a crowd...how many people constitute a "crowd." Growing up I took pictures of anything I wanted there, but times have changed.

A photographer was recently charged under this law and ordered to pay 10,000$ to the plaintiff. Yes, there were extenuating circumstances, but it shows the gov't is ready to act on this law.

I think this is stupid but I'm not going to take the chance of losing my D200 either.

ELAY · #2 (**permalink**) 07-05-2007, 01:58 AM

Uvsub your post intrigued me so I put my lawyer hat on and tracked down the case. If you want to look it over, you can find it here.

The story starts, as many good ones do, with the photographer and the young lady. He took a street-type shot of a 17 year-old woman on the steps of a building on St. Catharines St. The shot made it to the cover of an arts magazine (700 copies or so sold). The young woman in question sued under the Quebec Charter of Rights (not the same as the Canada Charter of Rights) and was awarded $2,000 as damages for violation of her moral rights (in court she said that some of her friends at school laughed at her). The photographer (no doubt bankrolled by "media interests") appealed the thing all the way to the Supreme Court of Canada, if you can believe it, where the judgment was upheld.

What does this mean for your trip? Well, first off, it sounds like the kind of situation where most photographers do get model releases, even outside of la belle province -- I mean would you take a shot of a person and publish it on the cover of a magazine without a model release? Would any magazine in its right mind accept it? So I am not sure that aspect of the case requires a radical change in your approach.

Second, I could see this happening in any province now with the advent of privacy legislation. The common law already protects, to some degree, an individual's rights to the commercial exploitation of his/her image; privacy law could quite conceivably stretch to the point where we all have the right to control our images, even in non-commercial contexts. Also you have to remember that this thing first went before the equivalent of a small claims court where just about anything can happen; the appeals courts downstream basically have to accept the facts as found by the first judge.

Third, there are some pretty big and important exceptions. They are mostly laid out in these paragraphs:

Quote:

Thus, it is generally recognized that certain aspects of the private life of a person who is engaged in a public activity or has acquired a certain notoriety can become matters of public interest. This is true, in particular, of artists and politicians, but also, more generally, of all those whose professional success depends on public opinion. There are also cases where a previously unknown individual is called on to play a high‑profile role in a matter within the public domain, such as an important trial, a major economic activity having an impact on the use of public funds, or an activity involving public safety. It is also recognized that a photographer is exempt from liability, as are those who publish the photograph, when an individual’s own action, albeit unwitting, accidentally places him or her in the photograph in an incidental manner. The person is then in the limelight in a sense. One need only think of a photograph of a crowd at a sporting event or a demonstration.

59 Another situation where the public interest prevails is one where a person appears in an incidental manner in a photograph of a public place. An image taken in a public place can then be regarded as an anonymous element of the scenery, even if it is technically possible to identify individuals in the photograph. In such a case, since the unforeseen observer’s attention will normally be directed elsewhere, the person “snapped without warning” cannot complain. The same is true of a person in a group photographed in a public place. Such a person cannot object to the publication of the photograph if he or she is not its principal subject. On the other hand, the public nature of the place where a photograph was taken is irrelevant if the place was simply used as background for one or more persons who constitute the true subject of the photograph.

60 In the context of freedom of expression, which is at the heart of the public’s interest in being informed, the person’s express or tacit consent to the publication of his or her image must, therefore, be taken into account.

Fourth, the prohibition is only on publication, not taking the picture. The distinction is important, because it means that the act of photographing is not unlawful -- so while I can't guarantee the safety of your D200, I don't think the decision puts it at any higher risk of being seized than it would be on the streets of Red Deer.

Last, I think the case was a bit of a tempest in a teapot. It is almost ten years old now, and so far as I can tell it has not contributed to a street photography witchhunt in Quebec.

I will send you my bill at the end of the month.

Cheers,

EL