French privacy

After reading the NYT Lens piece about French privacy laws (below) I was a little hesitant in taking pics at the Marseillan plant fair yesterday. I was a little worried after taking this when he came up to me a few minutes later...but it turned out he just wanted to see what kind of camera I was using. As noted below, there's something to be said for relying on a small camera, a smile and being inconspicuous.

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Protecting the Right to Photograph, or Not to Be Photographed

by OLIVIER LAURENT, lens.blogs.nytimes.comApril 23rd 2013 5:00 AM


Nick Turpin has run dozens of street photography workshops in Europe, but nothing compares to Paris, where his students are often confronted by furious pedestrians who don't want to be in anyone's picture.

"I've had to weigh in and literally rescue them," he said. "People can get really angry, and since my students tend to use a longer lens, they zoom in and out, try to frame the picture, and, of course, it takes longer for them to take a photograph."

In his 20-year career, Mr. Turpin has learned how to be inconspicuous, relying on a small Leica and a quick smile - especially when he's shooting in France, whose privacy laws are among the world's strictest. "Everyone has the right to respect for his private life," states Article 9 of France's civil code. Yet, as many street photographers have discovered, the law is open to judges' interpretation because legislators have refused to define the concept of privacy in clear terms.

This litigiousness is playing out in a country on whose streets Henri Cartier-Bresson, Willy Ronis and Robert Doisneau created historic images that continue to inspire photographers today. Yet in the 23 years since Article 9 became law, street photography in France has all but disappeared.

"To some extent, French people now have a sense that they own the right of their image," Mr. Turpin said. "I think this law has affected the entire culture and, as a result, put photographers off from taking pictures in the streets. I believe that what happens in a public place should be a matter of public record, as is the case in the United Kingdom. There, I'm always taking pictures for a particular purpose - for an exhibition or for a book - and all I'm saying is, 'This is what I saw.' "

Even in countries with no such privacy laws, photographers are finding it difficult to shoot amid an increasingly suspicious public. Law enforcement officials have stopped and even arrested photographers who were taking pictures of public buildings or police activity. And more and more people are wary of being photographed on the street, lest they turn up in a Facebook or Instagram picture.

But the clash has been most pronounced in France, where the legal record is mixed. In 2008, when a woman objected to the use of her image by the photographer François-Marie Banier in his book "Perdre la Tête," an appeals court sided with Mr. Banier. The ruling decreed that the right to control one's image must yield when a photograph contributes to the exchange of ideas and opinions, deemed "indispensable" to a democratic society.


Brasserie Lipp, Saint-Germain des Près, Paris. 1969.
Photo by: Henri Cartier-Bresson/Magnum Photos
"In this particular case, artistic freedom took precedence over the right of privacy, which can be encouraging to photographers," said Joëlle Verbrugge, a French lawyer, photographer and author of the Droit et Photographie blog, which focuses on photography rights.

But an appeals court contradicted that decision last November when it ruled in another case that simply being in a photograph entitled the subject to compensation. The case pitted Claire Chazal, a news anchor, against the tabloid magazine Voici. The ruling, in essence, meant photographers would need permission to take shots in public.

Mr. Turpin acknowledged that photographing people in public could have unexpected consequences for all involved.

"I could be photographing a couple kissing while they shouldn't be kissing," he said. "But if they are doing it in a public place, it's a risk that they're running. It's not the responsibility of the photographer. When I shoot commercially, though, I have a strong responsibility not to misrepresent the people that I'm picturing and not to associate them with a product without their permission. There's a line I can't cross."

In Britain, even places that seem public might not be, as local governments allow public land to be developed by private companies that can control access. "The public can come and go freely and spend money in their tenants' cafes and shops," Mr. Turpin said. "But these lands are privately owned, and that means the public can't do whatever it wants - and often that means taking photographs."

Although the law hasn't been tightened in Britain, at least not yet, there is nervousness among photographers like Martin Parr, who has made his career taking candid pictures of people in public spaces. "We can still take a picture on the street and, technically, do whatever we want with it," he said. "People might have a moral right" to object, "but they don't have a legal right."

The same is true in the United States, said Mickey H. Osterreicher, general counsel for the National Press Photographers Association. "There's a growing sense, for whatever reason, that anybody with a camera is suspicious," he said. "We often see that from police officers and security guards, who tell people that they can't take a picture of a particular building or of them at work."

In some cases, photographers have been arrested, often on charges of disorderly conduct. Mr. Osterreicher said there was also growing anecdotal evidence of people objecting to being photographed in public.

"As a rule, I'd say it would be common courtesy to ask people whether you can take their picture," he said. "But, then again, if you're doing street photography and you see something going on, you don't want to alter that dynamic."

Or the decisive moment.

Last year, France's new minister of culture, Aurélie Filippetti, promised she would look into revoking Article 9. In an interview with Polka magazine, Ms. Filippetti argued that it was unacceptable to prevent professional photographers from sharing their vision of the world with future generations.

"Without them, our society doesn't have a face," she said. "Because of this law, we run the risk of losing our memory. This is even more unacceptable when you consider what's going on online, where millions of images circulate without us knowing how they were taken and in what circumstances. Just to think that Cartier-Bresson or Josef Koudelka would have been prevented from doing their work is unbearable."

Ms. Verbrugge, the French lawyer and photographer, said she didn't believe the law would be altered any time soon, since she doubts legislators are ready to define privacy concretely. That reluctance could have unfortunate consequences for people like Mr. Turpin and Mr. Parr, who have been working on street photography projects in France.

"I'm producing a book project about this country," said Mr. Turpin, who lives in France. "It's something that no one has really done in the past 30 years. And I'm planning to publish this book everywhere, except in France. When I think that people will be able to buy it in Dover but not in Calais, which is just 20 miles across the Channel, it just doesn't make sense."


The animals' day, Avenue Foch, Paris. 1973.
Photo by: Henri Cartier-Bresson/Magnum Photos
© 2013 The New York Times Company.

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