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Photography, Trespass and Privacy – Know Your Rights


Introduction

Like most activities carried out in public, photography is subject to many laws that restrict where and when you can do it, and who or what you may or may not photograph. Broadly speaking, in the UK if you are in a public area you can take as many photos as you want of whatever or whoever you like, without fear of the law. However, over the past few years there have been several well-publicised incidents in which both amateur and professional photographers have been stopped and questioned by the police, and in some cases even arrested, while innocently taking photographs in public places. In other cases, photographers have been harassed and threatened by private security guards in town high streets and shopping centres, and have been forced to delete images from their cameras. With incidents like this apparently on the rise in the UK, it's important to know your rights as a photographer. Where are you allowed to take photographs, and where are you prohibited from doing so? What powers do the police or private security guards have to stop you from taking photos in public, and what should you do if you are stopped by the Police?

Prohibited Areas, Private Property and Trespass

If you are in a public area, for example a public highway or footpath, a public park or common land, or at a public event, you are generally free to photograph whatever or whoever you want, including other members of the public and their private property. There are certain prohibitions regarding photographing military installations and other restricted sites, but these are largely common sense. If a site has armed guards, big barbed wire fences and signs saying “No photography” then play it safe and point your camera elsewhere. However, owners of private property have no right to prevent you from photographing their property, as long as you are not trespassing.

In terms of the law, trespass is defined as entering or interfering with private property without the owner's permission. In this case “interfering” may be something as innocuous as resting your camera on a wall to take a long-exposure shot, but realistically the police would be unlikely to take any action against you unless they had other reasons to suspect that you were up to no good. It's also worth noting that public access to private land provided under the “right to roam” laws of the Countryside and Rights of Way Act 2000 permits casual or amateur photography on private property, but not commercial professional photography, for which permission of the landowner is required. The law is slightly different and less restrictive in Scotland.

Some places that are open to the public such as museums, art galleries and country houses, do often prohibit photography, mainly so that you'll have to buy their expensive prints and postcards rather than making your own. Even if you've paid to get in to such a place, if you take a photograph in contravention of a prohibition you will immediately become guilty of trespass, and the property owner would be within their rights to call the police.

Under the Criminal Justice Act 1925 you are not allowed to take photos of court proceedings, or even anywhere in the building where the court is being held. You are also not allowed to take photos of the judge, witnesses or jurors in a case as they are entering or leaving the building.

Many concert venues or other public events for which tickets are sold may also have restrictions on photography. Usually this will be noted in the small print on the ticket, the concert program or on the website for the event. If you’re planning to take your camera along make sure that you read the terms and conditions thoroughly before you do so. If you don’t you could risk being refused entry, or being asked to leave your camera at the cloakroom or security station, which you may not want to do. Since the event is considered to be private property the operators are completely within their rights to impose such restrictions.

There are some open public spaces where some types of photography are also restricted, such as Trafalgar Square, Parliament Square and the Royal Parks in London. These restrictions apply only to commercial or professional photography, for which an expensive permit is required. Normal tourist snapshots will not usually be prohibited in these places. The rule of thumb is that if you're using a tripod you're probably going to be stopped and questioned, but in most cases you'll usually only be asked to move on.

It’s also worth noting that images of a number of well-known buildings and other edifices are covered by copyright law, and photos of them may not be sold commercially without permission from the copyright holder. These include Stonehenge, London City Hall (known as the “Onion”), 30 St. Mary Axe (the “Gherkin”), the Shard, the London Eye, Heathrow Airport, Spinnaker Tower in Portsmouth and Rosslyn Chapel in Scotland. There are many others around the world.

Many shopping centres, while open to the public, are in fact private property, and may have restrictions in place regarding photography. If you want to take photos in such a place the safest option is to contact the owners and obtain written permission. If not, then you run the risk of an encounter with the infamous private security guards. Despite what many of them seem to think, security guards in these areas have very limited powers. They may not search you without a police officer being present, and they may not detain you unless they have clear evidence (such as CCTV footage) that you have committed a crime, and even then they can only hold you until the police arrive. They cannot make you delete any photos you have taken, and they certainly cannot seize your camera gear. Any attempt to do so could be considered an assault. They can ask you to vacate the property, and they can call the police if you refuse, but that's about it.

Privacy and Harassment

If you are in a public place, you are free to take photos of other people who are also in that public place, regardless of whether you have their permission. Photographing another person in public only becomes harassment, as defined by the Protection from Harassment Act 1997, if “the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.” In other words, taking one or two photos of someone isn't harassment, but repeatedly deliberately stalking them and photographing them despite their protests would be a criminal offence. Exceptions are made if the pursuit was for the purposes of detecting or preventing a crime, or if it could otherwise be shown to be reasonable.

The right to privacy is defined and protected by Section 1, Article 8 of the European Convention on Human Rights, which states that “Everyone has the right to respect for his private and family life, his home and his correspondence.” However, the interpretation of that law is generally that you can only invade someone's privacy if they have a reasonable expectation of privacy in a given situation. For example, photographing someone in the street or at a public event is not usually considered to be invading their privacy, but using a telephoto lens to photograph them through their bedroom window certainly would be. This is one area of the law that is open to interpretation by the courts, so use your common sense, and if in doubt always get permission first.

One special case is the photographing of children. While they are protected by the same right to privacy, the courts are usually a lot stricter in enforcing it, mostly because children cannot legally give their consent to be photographed. Recent cases have held that a child has a right to privacy even in a public place, and in any case photographing children will certainly draw unwelcome attention from the police. Many local authorities prohibit photography at children's events such as school sports days and stage shows, even if your own children are appearing.

Obstruction

While you are free to take photographs in any public highway, including footpaths and cycle tracks, it is an offence to “wilfully obstruct the free passage along a highway”, according to the Highways Act 1980. This is not normally going to be a problem if you're just taking pictures, but if you set up a camera and tripod in a busy street you will almost certainly be causing an obstruction, and the police will usually ask you to move on. It is also inadvisable to use a flash when photographing near a road at night, as this can be construed as causing a danger to road users.

The Terrorism Act

Britain is, at least in principle and despite some appearances to the contrary, still a free country, and unless you are openly breaking the law you should be free to go about your business unmolested by the powers of the state. As long as you are not trespassing on private property and not deliberately harassing anyone, you do not need permission to take photos in a public area and the police have no powers to stop you from taking pictures, including taking photos of police officers themselves.

However there are some laws that have such broad and easily-abused definitions that they have been used to restrict the rights of photographers and other people going about their lawful business, most notably several sections of the notorious Terrorism Act 2000, in particular sections 43 and 44. Following widespread protest and media attention, and a mass demonstration by photographers in Trafalgar Square, the often-abused section 44 of the act was withdrawn in July 2010 after the European Court of Human Rights declared it to be a violation of the right to privacy, but section 43 is still in force and is just as open to interpretation and abuse. The relevant parts of the act read as follows:

Section 43 - Search of persons.

1. A constable may stop and search a person whom he reasonably suspects to be a terrorist to discover whether he has in his possession anything which may constitute evidence that he is a terrorist.

2. A constable may search a person arrested under section 41 (“A constable may arrest without a warrant a person whom he reasonably suspects to be a terrorist.”) to discover whether he has in his possession anything which may constitute evidence that he is a terrorist.

4. A constable may seize and retain anything which he discovers in the course of a search of a person under subsection (1) or (2) and which he reasonably suspects may constitute evidence that the person is a terrorist.

The powers granted to police officers by this act have frequently been used to stop, question and search innocent photographers, particularly in London. The key phrase here is “reasonably suspect”, because what you may consider to be perfectly normal behaviour may, to a bored, stressed or just plain bad-tempered police officer, be considered a good excuse to stop and search you, and if you object then you can be arrested. As long as they can say they thought you were acting in a “suspicious” manner then there's really nothing you can do about it, apart from writing indignant letters to the newspapers and your MP.

There are other sections of the Terrorism Act that can apply to photographers, such as section 58 which covers making a record (including photographs) of “information of a kind likely to be useful to a person committing or preparing an act of terrorism”, and section 58A, which covers eliciting or publishing information about members of the armed forces, security services or the police “which is of a kind likely to be useful to a person committing or preparing an act of terrorism”, and which can include taking photos, however these sections are used less frequently.

As a result of the ECHR ruling a rather hurried change was made to the law in March of 2011 replacing sections 44 to 47 of the Terrorism Act 2000 with Section 47a. The wording of this amendment is virtually identical to the old section 44. The only difference is the provision that a senior officer must authorise the action. Under the amendment a senior police officer can give an authorisation relating to a specific area if he or she “reasonably suspects that an act of terrorism will take place”. This authorisation is supposed to be of limited scope and duration, but again this decision is down to the officer in question, and a “senior police officer” in this case means an Assistant Chief Constable, or a Commander in the Metropolitan Police area. Under this authorisation any constable in uniform may stop any pedestrian and search them and anything they are carrying, and may also stop and search vehicles, including the driver and passengers.

Your Rights

Basically, unless you are actually arrested, or if you are driving a motor vehicle when you are stopped, you do not have to give the police your name, address or any other personal information, nor explain what you were doing or where you were going. However under the provisions of the Terrorism Act the police do have the right to detain you while they search you, they can pat you down, ask you to remove your outer clothing (such as a coat or jacket), remove any item which they “reasonably believe” might hide your identity, search your pockets or bags, and can seize any item which they “reasonably suspect” is to be used for the purposes of terrorism. If you object to any of this you may be considered to be obstructing an officer in which case you will be arrested. A police community support officer may not perform a search unless a police officer is also present.

While I do of course fully support the police in the lawful execution of their duties, it is also important to stand up for your rights, so if you are stopped you should politely insist that you be allowed to take notes of anything that is said to you, including the reason you were stopped, and you should ask to see the officer's warrant card and note down the number on it (shoulder numbers can change if an officer moves to a different station). You might also be allowed to record the proceedings using the voice recorder on your mobile phone, or ironically the video recording feature of your camera. If so then it's a very good idea to do this for your own protection.

Disclaimer

While I make every effort to provide accurate information, I’m not a lawyer. The preceding article is for general advice only, and I don't accept responsibility for any loss, damage or inconvenience suffered as a result of following information presented here. If you have any doubts about your legal status as a photographer, or any specific questions regarding the law, the best option would be to consult a lawyer.

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