Photography, It is a Privilege

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ultimitsu
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Photography, It is a Privilege
10 months ago

It is easy to take things for granted. Because we always had it, we cannot expect to lose it. Many people believe the right to photography is a fundamental right because the current law does not prohibit photography. Over the last few days we saw no less than three threads maxing out to 150 on this very subject. In this post I will examine that stance both legally and morally.

First of all, it should be recognised that "fundamental rights" is not merely something is passively permitted by the absence of a law prohibiting it. True fundamental rights are generally enshrined in domestic law or international treaties, they are rights that the state will not infringe upon individuals for the purpose of sustain an open and healthy society. Recognised fundamental rights include right to association, right to movement, right to marry, etc. right to photograph is not one of such rights. Nor should it be. Therefore it is wrong to argue that anyone has a fundamental right to photograph other people.

Secondly, all rights are subject to limitations, because for every right there is a competing right. For example freedom of expression competes against right to dignity, that is why in almost all countries there is tort law of defamation, even in the USA where freedom of expression is a constitutional right. People in public have right to dignity and privacy (which will be examined in later paragraphs). When these rights are in direct competition with right to photography, there is no reason why that photographers' right must prevail. So if someone feels their right to dignity is breached by some stranger photographing them, it is very arguable that some limitation should be placed on the right to photography.

Thirdly, paparazzi often insist that there can be no privacy in public place. This is a very contentious point and it is not accepted in every country. In New Zealand for example, Andrews v TVNZ confirmed there can be an expectation of privacy in public place. In UK, Campbell v Mirror Group confirmed a similar principle - taking picture of Naomi Campbell outside a rehab was considered breach of confidence and privacy. I for one think the idea that just because one is in a public place he has no expectation to privacy is absurd. We live in a social environment where we have no choice but to use communal infrastructures. For example we have no choice but to use public roads when we go to work or school or visiting others. The price that we pay to have access to these infrastructures is taxes and obedience to the use rules. But nowhere was there a requirement for us to forgo our privacy, nor does any of us think we should demand others of such a requirement. As a matter of common sense most of us indeed understand and accept this without hesitation. For example, when you see a two young lovers walking down the street whispering words into each other's ears, no one in the right mind would walk up close to them and demand the right to eavesdrop. Also for example, when men use urinals in the mens room, no one in the right mind would bend down and closely examine a stranger's junk under the name of "you are in a public toilet, mate!"

Lastly, An argument frequently forwarded by paparazzi is that if we have the right to see what is happening in the public place and preserve that moment in our brain with our memory, then surely it makes no difference is we just capture that moment with a camera and preserve it with a jpeg or print. This argument fails because the right to see something does not automatically equal to the right to record, no such doctrine ever existed. In fact there are many places in out society where it is explicitly forbidden for one to record what they see, such as a strip clubs, movie threatres, and ironically, photography exhibitions. It should also be pointed out that passively seeing something is fundamentally different to actively record something. When you go to a park to either relax under the sun or play fetch with your dog, you may inevitably see children running around. No reasonable parents would have any objection because we accept that we cannot demand others to selectively not see something that is in front of them. However the positive act of taking pictures of children has a very different motive, it thus attracts different reaction and quite rightfully can attract different legal consequence. It should also be pointed out that a lone man who stands by a children's play ground and stares at them will equally attract objection from ordinary parents, in the very same vein.

The point of me writing this essay is to show it to you, my fellow photographers, do not think you have an absolute prevailing right, legally or morally, to photograph anyone anywhere anyhow you like, especially in the face of their objection. Morally such right does not and should not exist. Legally, where such right currently exists (US and probably Australia), it is merely passively permitted. So please, just keep all this in the back of you head, respect others and remember that the right to photograph in public places is a privilege and it only takes the action of one stupid ahole for a High Court judge or the parliament to outlaw photography in half of the public places. Irresponsible acts have already lead to ban of firearms (in many countries, right down to ownership) and smoking in public places, let not photography follow that path.

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