Does GDPR Spell the End of Street Photography?
As you probably know by now, after receiving a gazillion emails advising you of the fact, last month saw the introduction of the GDRP, the EU’s General Data Protection Regulation. And in an article on his website, German photographer and journalist, Hendrik Wieduwilt, is worried. Very worried.
Following the implementation of the GDPR, many Europeans woke up on May 26th to find they could no longer have access to some newspapers outside the European Union, as they do not comply with the new regulations.
GDPR, in a nutshell, is a new set of rules designed to give EU citizens more control over their personal data. It aims to simplify the regulatory environment for business so both citizens and businesses in the European Union can fully benefit from the digital economy.
In other words, we get to have more control over what people do with our personal data. And if you have googled your name at all, you would know there is a ton of data about you online.
Wieduwilt said that the new rules have led to hundreds of bloggers taking down their sites in fear of being fined.
“A guy in Austria is filing $8.8 billion–dollar lawsuits against Facebook and Google,” he says.
“Hundreds of bloggers have taken down their sites, fearful of the possibility of serious fines. Internet light bulbs have stopped working properly. And photographers are being targeted, too.“
But how does that affect us photographers? Well, this is where things get real tricky.
“If you’re a professional, then you will need to fix your customer relationship management, your website, your data security, and much more,” Wieduwilt says.
“Just don’t email those stupid GDPR emails if you run a newsletter — chances are, you’ll just make things worse. If in doubt, ask a lawyer. And there will be doubts.
“If you’re just a mom or pop shooting pictures of your family, you should be fine. The GDPR does not apply to data processing “in the course of a purely personal or household activity.” But beware: if you have a million Instagram followers, your kid’s birthday party is probably not a “household activity” anymore.”
If you’re a photo enthusiast, then things get tricky.
But according to Wieduwilt, the GDPR sees photography as the processing of personal data.
“Yes, your dreamy picture of that girl in the sunflower field is the “collection and sharing of personal data” in the eyes of a data protection officer,” he says, adding that many things in a photo are personal data: her face, the location, the time and date, and everything that is tied to her identity.
So, this is the part where you legally need to provide some kind of justification to have taken the picture of the girl in the field in the first place, store it on your hard drive, or post it on social networking platforms like Instagram and Facebook, unless, of course, you are a friend.
“If you’re just a friend, it’s out of the scope of the GDPR again, “personal or household activity,” Wieduwilt writes. “But an enthusiast sits uncomfortably in the middle.”
He asks if photographers are ready to comply with data duties, such as wiping out personal data of someone who files a complaint, years after you took their photo, or to find each and every photo you have posted and delete it upon request.
And as for most of us street photographers, Wieduwilt thinks that practicing the art will become a legal nightmare.
“You cannot get consent before you take the shot because that would usually destroy the moment,” he says.
“According to the data protection law, you’re not allowed to only ask for it afterward. If you take a picture as an event photographer, you might argue that taking pictures of visitors at a conference is “necessary for the purposes of the legitimate interests” (Art. 6 lit f GDPR). You don’t need consent then.
“But can you do that if you shoot that amazing shot of an elegant business guy in a light cone on the street? Probably not. And you certainly cannot do it when a child is in your picture. That “legitimate interests,” argument does not apply, “where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.” Everybody got that? Good.
In Germany, according to Wieduwilt, over the years, courts had found an acceptable balance between privacy rights and photography freedom. He says that, recently, the German Constitutional Court even ruled that street photography is protected by the constitution because it is “art.”
But he goes on to add that, that fair balance is at peril with the GDPR.
“The nature of an EU regulation is brutal and relentless,” he says.
These laws come into force in every country and the courts have to ignore all national laws that contravene.”
But, there still seems to be some hope. Wieduwilt says that some lawyers argue that the good old law from 1907 persists despite the GDPR. They cite Art. 85, a provision that deals with “Processing and freedom of expression and information.”
“It calls for Member States “to reconcile the right to the protection of personal data pursuant to this Regulation with the right to freedom of expression and information” — also for “artistic expression,” like street photography.”
You can read the full article here, but as for us Brits, the future is quite a bit uncertain. So, our advice to you is to always carry consent forms (model releases) everywhere you go, and to be sure to use them before you take that “moment” shot you have been yearning for. It sucks, but times are changing and so must we.
You could shoot people making sure that they are not identifiable, but we really don’t advise it, unless you are absolutely legally sure you are doing the right thing. You have been warned.