No right not to be photographed - councils overreact

The man was standing on the footpath when I arrived home, taking photographs of frangipani flowers lit by the late afternoon sun. “Hope you don’t mind my taking photographs here”, he said, nodding towards the tree in the front garden.

We started talking. He had recently developed an interest in photography and practiced by taking images around the neighbourhood. Glancing to the young woman accompanying him, he said, “I bring my wife with me … I don’t want to be mistaken for a pedophile”.

A strange statement, I thought. What could taking photographs on a public street have to do with sex crimes against children?

Plenty, in the imaginations of the mayors of Waverly and Randwick municipalities, both of whom earlier this year proposed selective bans on photography in their local government areas. George Newhouse, Deputy Mayor of Waverly Council, proposed that cameras, including those built into mobile phones, be banned from places where children play. That would include seaside playgrounds and public parks and would cover popular beaches in Waverly municipality such as Bondi, Bronte and Tamarama - all popular tourist venues.

Newhouse denied the proposed ban would prevent parents photographing their children or tourists taking photographs. As news of the controversial proposal quickly spread, he told the Sydney media that signs could be erected banning the use of cameras in designated areas. On-the-spot fines could be issued to photographers who refused to comply. He claimed the ban would prevent the exploitation of children and sunbaking women.

In neighbouring Randwick municipality, Mayor Murray Matson followed up by proposing to ban photography at council-owned swimming pools. This brought an immediate and largely hostile reaction from parents who believed that Matson’s move put them in the same category as pedophiles for simply taking pictures of their children.

These are gut reactions to an issue that pitches the civil liberties of one group against those of another. They are un-thought-out responses to new challenges brought by the rapid spread of convergent communications technologies, such as mobile phone-cameras and cheap, digital cameras. As responses by supposedly intelligent council officers, they are far too simplistic and fail to acknowledge the long-established traditions of street and documentary photography. Faced with a community backlash, Randwick council suspended their decision.

The incident of the topless women

It was topless, sunbaking women and a pervert with a mobile phone camera that were responsible for the latest revival of this particular moral panic, the origins of which can be traced back to the time when camera-enabled mobile phones first appeared on the market. It was then that the fearful and paranoia-inclined realised that the new technology could be used to surreptitiously take photographs in the changing rooms of public swimming pools. Never mind that there was no such incident on record, pool managements went into proactive prevention and banned the devices, though how this was to be accomplished remained unclear.

Topless women enter the story - or should I say the viewfinder - in 2004 when Peter Mackenzie was charged with using the camera in his mobile phone to take photographs of topless female sunbathers at Bondi Beach. Mackenzie was fined $500, however he was charged with nuisance, not photography, because photography is not yet a crime on Sydney’s eastern suburbs beaches - however much those occupying the mayoral suites might like it to be, in particular places at least.

Commenting on the Mackenzie incident on his website, Sydney photographer and observer of the photography scene, Andrew Nemeth, suggested Mackenzie was clearly at fault and got what he deserved. “He crept the length of the beach and took a number of photos of topless women, often just leering close-ups of their exposed breasts … this was obviously an offensive thing to do - and he got nailed for it.”

Most photographers would agree with Nemeth’s sentiments because they know that behaviour like Mackenzie’s can discredit photographers in general and garner support for simplistic local government solutions. Fortunately, moral panic about photographers and camera-equipped mobile phones on beaches and in city parks is far from universal. Nameth recounts his own experience around the time when photographing without interference among families at a Sydney beach. He sums it up concisely and accurately: “It's clearly not what you do or where you do it, but rather the finesse with which it's done.”

Critics of the council proposals to ban photography pointed out what should be a self-evident fact - that, rightly or wrongly, topless women in public places should anticipate being ogled, and that if they do not like it they have the choice of covering up or staying at home. A voyeuristic reaction from people sharing a public place - including those who wish to remember the scene through making a photographic image of it - should be anticipated by the scantly-clad.

Others came to the defence of the women, saying that photographers invade their right to privacy. But, hold on - what right to privacy is this? Surely it must be conceded that appearing in a public place cancels any assumed right to privacy. How can one be private and public at the same time?

The non-existent issue of privacy

As it turns out, the assumption of a right to privacy is a legal furphy. Melbourne solicitor Sharon Theedar puts the assumption into perspective on the legal website, AustLII:

In Australia, there is no common law right to privacy. This was demonstrated in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor where the High Court held that the act of overlooking someone’s racecourse and broadcasting the results of the race did not constitute an infringement of legal rights. Presumably, the same result would have been reached had the races been photographed.

Local government bodies have the power to impose strict controls over conduct on the public land they control. Councils make money from fees imposed on commercial movie production, videoing and stills photography but do not interfere in amateur or documentary photography or in news production. The law is vague on council power to interfere in non-commercial photography in public places. Is it within their power to ban “unauthorised” photography, whatever that might be? How would councils “authorise” amateur photography on public land? How could they tell the difference between amateur or professional? And how would they control it?

Again, Nemeth puts these vagaries into a legal case context: “ … ‘unauthorised’ photography has been sanctioned in this country ever since the 1937 High Court decision in Victoria Park Racing v Taylor (1937) 58 CLR 479 (at p.496). In 2001 this was reaffirmed in ABC v Lenah (2001) HCA 63, where the High Court ruled that despite the passage of decades since Victoria Park, any concept of a 'Tort of invasion of privacy' still remains non-existent in this country. As Justice Dowd put it bluntly in R v Sotheren (2001) NSWSC 204 - ‘A person, in our society, does not have a right not to be photographed’.”

The issue of photographing children

It is important to note that there was no photographing of children in the Mackenzie case: children did not figure in the incident at all. They were introduced by the mayors and by unproven suspicions about male photographers at surf carnivals.

The Australian’s Greg Roberts alluded to the suspicion in January 2005 in reporting Deputy Mayor Newhouses’s proposed camera ban. “In NSW, community outrage over the suspicious photographing of children at beaches and surf carnivals has prompted a local government push to ban cameras from Bondi Beach”, he wrote, going on to quote Newhouse as saying, “It's the lifesavers who've been complaining about this problem, because these sorts of people have been heading down for the Nippers' surf carnivals and taking pictures of kids in their bathers, and that's just not on”.

The Surf Lifesaving Association of Australia is aware of the issue. Their February-March 2004 edition of E-news reported, “… a number of readers have commented on the article reprinted in a previous edition of E-news about a growing problem of people taking inappropriate photos during surfing carnivals”, and went on to say that NSW Police had clarified a remark by Detective Chief Inspector Bob Sullivan in The Sun-Herald which quoted him as saying it is illegal for people to take unauthorised video footage or still photographs of children. “The reality is that it is only illegal to take such footage if a person has previously been convicted of child offences”, reported E-News. “… Nevertheless, it’s important to be vigilant, and, if in doubt about someone taking photos of your children or members of your club, his advice is to ring the local police.”

This last piece of advice is a little alarmist and could well be an overreaction. With parents, tourists, amateurs and the media all likely to be taking photographs at a Nippers' surf carnival, the statement carries a number of vague terms that cry out for definition. What are “inappropriate photos”? What are “unauthorised video footage or still photographs of children”? Who authorises making images on public land? When should parents “have doubts about someone taking photographs …”?

The issue is potentially serious and advice on dealing with it needs to be serious and clear, too.

A strange reaction of the P&C

As the topic enjoyed new life in early 2005, the NSW Federation of Parents and Citizens' Associations (P&C) got in on the act when President Sharyn Brownlee suggested parents be required to obtain permission from schools to photograph or video their child at school events.

In a report on the P&C proposal, the Sydney Morning Herald quoted Brownlee on P&C policy, “ … a general rule: no dirty old man in a raincoat is able to take videos, or general photographing of children, at a school carnival, or otherwise".

Unfortunately, in resorting to stereotyping and name-calling that could link genuine photographers (who could be parents) to pornographers, Brownlee stooped to gutter politics. A person in her position should have been a little more articulate and sophisticated in addressing the issue. She ignored the rule of law that people in our society are innocent until proved guilty in a court of law - that is, the presumption of innocence. To turn her statement around, Brownlee’s comment is tantamount to alleging that because some school teachers have been arrested on child sex charges, all teachers should be regarded as potential molesters.

Brownlee, it seems, really was in information control mode: “She sees the policy extending to school productions, with ‘no candid shots or footage from rehearsal’.”

“The Department of Education and Training remains neutral, saying children's guardians should be allowed to decide whether or not they appear in a video or photograph”, the Herald reported. It quoted NSW Council for Civil Liberties President Cameron Murphy on the P&C proposal: "Parents have been videotaping their kids at school events for the better part of two decades without problem". Claiming that NSW is one of the “most governed states in the world”, the Herald again quoted Murphy on the photography issue: "What we don't need are regulations which impose a confinement of a legitimate activity."

Again, Nemeth was quick to comment: “Can we presume similar permission was also obtained by every parent for every child in the string of thumbnail images across the top of the P&C home page?”

Greens and civil liberties - a reason for alarm?

Alarmingly for a political party that one would think supports civil liberties, the Greens were apparently happy with their mayor’s proposed ban. A February 25, 2005 item on their website comments on the move to display the proposal as draft policy.

“Council has a duty to reconcile pool-users’ genuine concerns that their children's privacy may be violated against protecting the civil liberties of other parents to photograph their children”, says the posting. Very fair-sounding, but legally, nonsense. Like the topless women issue, the Greens also appear to be ignorant of the reality that there is no “right to privacy” in public places; that it is not unlawful to use a camera in this country and that photographers - whether parents or not - also have civil liberties.

Murray Matson appears not to have properly considered this and nor, apparently, did his party advisers. This can only raise alarm about Green governance and reinforces the notion that, despite claims of supporting civil liberties, the Greens have an authoritarian streak not far below the surface.

Practice based on tradition

The right of photographers - professional, amateur and tourist - to take photographs in public places is not only a legal one, it is one based on decades of practice. Without the work of the Dupains in Australia and numerous other street photographers in the US and Europe - Eve Arnold, Rene Buri, Cornell Capa, Walker Evans, Elliott Erwitt, George Roger, Henri Cartier-Bresson and the others - we would be without a record of the way people dressed and behaved and of the social mores, street ambiance and concerns of those decades.

Street photography - the making of images of our environment and the people that inhabit it - without obtaining anyone’s “authorisation” and the publication of images or their retention in commercial and private collections is important to documenting the times we live in. With the passage of time and as personal memory of those times fade, even the snaps of amateurs take on documentary significance.

The boundary between street photography and documentary is blurred, but documentary photography is another well established form of image-making that eventually forms a historic record. Think about the photo-journalistic images in once-popular journals such as Life. Whereas street photography may be unplanned and opportunistic in practice, documentary is often planned and, at times, done with the knowledge, indeed the co-operation of those being documented.

At best, the mayoral proposals can be seen as an attempt to deal with the unanticipated challenges of new communications technologies. At worse, they appear as cheap populism and a form of preventative “Luddism”. However they are seen, more than a gut reaction response is required - something more intelligent, perhaps - which would not reinforce the belief that local government management is bumbling and frequently inept. We need a more thoughtful response to dealing with the impact of new communications technologies, such as camera-equipped mobile phones and the proliferation of digital still and video cameras. Local government apparently has neither the knowledge nor process for making informed policy on these new, convergent technologies. Simple bans can easily be got around by ignoring them.

Most photographers want to stop the pornographers and pedophiles as much as anyone else. Childish name-calling and quick-fix, gut reaction bans are unenlightened ways of dealing with these issues. They will generate only discord and resentment.