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Photography and freedom of expression. It’s not just the police that restrict it.

duckrabbit would like to welcome the writer, photographer and all round top bloke Julian Lass to our team. We met at Arles and sparked.

Following on from the irate gallery attendant who stopped me taking a photo in what I felt was a public space (see here), I would say that although many complaints photographers make against restrictions to freedom of expression involve the police, far less reported are incidences with security guards, public-space personnel (museums, galleries, swimming pools) and shop attendants. What it reveals is a wide mistrust of photographers. If you’re photographing, you’re seen as someone sinister, which is a view that the world is a dark and nasty place, where photographers are immediately suspicious.

Under UK law, it’s fine to take pictures in a public place. This is from the British Metropolitan Police website: ‘Members of the public and the media do not need a permit to film or photograph in public places and police have no power to stop them filming or photographing.’

I was stopped taking a photo in the Piccadilly Community Centre, an installation by Swiss artist Christoph Büchel in central London, in the former Hauser & Wirth gallery. Here’s what happened: I tried to take a photo in the main community room, which I thought was a public space and which, I felt, purported to be a public space. My photo included a dozen or so people and I singled nobody out, intending to capture a sense of the atmosphere. I was then asked, rather aggressively I felt, by an attendant to ask the people in the room for their consent. Which I did. One man objected, but when I suggested reframing from the rear of the room, so as to include his back, he agreed. The other dozen people seemed unconcerned as the photo was a general shot. So, why the vehemence? I felt awful, and it shattered my illusion of it being a particpatory, communal space.

It’s not the first time this has happened to me. And, I know it happens to many photographers. But where on earth does this vehemence against a person using a camera come from? I’m sure that most people who object to a photographer taking a picture in a public space have, at some time, themselves taken a photo, either with a camera, or a camera phone, with the non-consensual inclusion of others in the frame.

As I argued here, I think that the imaginary dream of a community centre realised for a short time in Piccadilly, and providing a real social service, covers up the lack of ideological-egalitarian mechanisms – the space is owned and run by Hauser & Wirth, a global gallery with huge resources, and Piccadilly, because it is so expensive to live there, has few residents who might truly benefit from a social drop-in centre.

The art critic Jacques Rancière says that the history of modern art has been its attempt to escape itself in order to transform the reality of things. The Piccadilly Community Centre is an example of this. It is a relational art: an art that no longer seeks to create works, just situations and relations, offering society small services suitable to repairing gaps in social relations. The content of the work appeals to a sentimental and popular understanding of what it means to ‘do good’ – ie, old people deserve our altruism and there’s no real way to argue against that (because if you reject the premise, you reject what’s considered, consensually, to be ‘good’). And, by extension, if you move against what’s considered, consensually, to be good by doing something that’s considered, consensually, to be bad (ie, take a photo of people in a room, or take a photo of private property), you cannot argue against it, however valid and proper the argument.

So, I was stopped from taking a photograph because it was considered, consensually, to be against the good.

Apart from that, the only thing I can think of, from a legal point of view, is that there was an problem of copyright. While it isn’t an infringement of copyright to take a picture of a building, or incidentally including a copyright work in a photograph, however taking a photograph of artwork (being a copy of the artwork) is copyright infringement, unless copyright in the artwork has expired or permission has been granted by or on behalf of the copyright owner. Any subsequent publication of an infringing photograph would also be infringement. The Copyright, Designs and Patents Act 1988 (CDPA), under S.4(1)(a), defines an artistic work as: “a graphic work, photograph, sculpture or collage, irrespective or artistic quality.” So, the photographer would require permission from the copyright owner to take the photograph in the first place. The resulting photograph itself will also be considered an artistic work and subject to copyright law. The duration of copyright for artistic works is the lifetime of the author/creator plus 70 years from the end of the calendar year in which the author/creator dies (s.12 of the CDPA). However, it could be argued that the community centre is a public space, rather than an artwork, in which case there is no copyright.

The installation, combining popular art (the community centre, the charity shop) with high art (the work’s endorsement by Hauser & Wirth), reinforces the distinction (between popular and high art) it purports to undermine. Especially since the work is inserted into the art market as ‘authored’. Social work in community centres does the same, but it’s not authored. So the work becomes a provocation: designed for the media, hiding its true relation to the entertainment industry to which art increasingly belongs. Which, I think, is part of the reason why I was stopped from taking a photo. This was actually an instance of a large company (Hauser & Wirth) defending its private property. There was nothing communal or participatory about the space. Seeing a threat to its ownership, it acted swiftly to annul the threat. (There is a problem of assigning blame to one individual or organisation, see below).

What it also reveals though, and what I’m more interested in exploring here, is that large firms and people working for them have a mistrust of photographers. If you’re photographing something, even in a public place, your guilt is assumed.

The upshot is, I now think twice about taking a photograph in a public place. Which means my freedom of expression has been affected.

Where does this suspicion of photographers comes from? Does some of it come from certain actions, perceived popularly to be irresponsible, by the paparazzi?

I’d like to explain in more depth another time how these ideas, that photographers are essentially up to no good, become attached to one another, ideas about paparazzi, about privacy law, about libel, about paedophilia, and how they end up attracting and propagating each other and forming comprehensive systems of suspicion. For now, it’s enough to say that perhaps, and (I’m leaning towards Foucault here), it is often the case that no one invented them. They just become accepted as the normal order of things.

I think the State (with a capital letter ‘S’), for its own reasons is interested in photography only as it affects the psychological state of its citizens. That might explain why it can be both libertarian and authoritarian towards photography. On one hand, it recognises the photographer, or media, is vital in maintaining the health and stability of society and upholding principles of free speech. On the other hand, it (the State) wants to show that it can protect.

The fear of photographers has become valorised and institutionalised. But we shouldn’t blame ‘the top’ for the rationality of some particular power formation. There are two reasons why not:

First, we will miss what’s actually going on if we assume a conspiracy. Second, we will overestimate the strength of the State and security guards, and over-zealous gallery attendants and sink into apathy. This is the problem of assigning blame to one individual or organisation.

I find there’s little practical advice on what to do when stopped. I am not a lawyer, I am a photographer and writer, but I’d like to know what to do.

So, if you are stopped by an official in a public place, despite reasonable pleas, ask the following:

1) Under what law are you stopping me?

2) What do you think I’m going to do? (Specifically, are they simply trying to deter, delay or inconvenience you?)

3) What will you do if I carry on taking pictures?

Inform them that you intend to assert your rights vigorously (making an informal complaint). (If you say you will pursue the issue through the Independent Police Complaints Commission, you will need a witness.)

Know your rights: photographers are free to take photographs of people in public places, including for commercial gain. Much of this is covered by Article 10 of the European Convention on Human Rights, incorporated into the Human Rights Act 1998, which protects the right to freedom of expression. The restrictions on this freedom are:

1) If you misprepresent or libel someone.

2) In England and Wales, if you harrass another person repeatedly to cause them alarm or distress. (In Scotland, this is not a criminal offence.)

3) Where you invade someone’s privacy. The Human Rights Act states in Article 8 that everyone has the right to respect for his or her private and family life, his or her home and correspondence.*

Read about your right of free expression on the Liberty website.

*

The Article 8 / Article 10 balance is a total grey area. For example, J.K.Rowling sued a pap news agency, Big Pictures, for taking a picture of her 4-year-old son, in 2008, under the Data Protection Act, which forbids the processing of someone’s personal data where it would be unfair or unlawful. The case was lost under the DPA, but was then brought under the judgment of the European Court of Human Rights. Rowling won it, as the case hinged on whether her son was entitled to protection of his privacy under Article 8 of the European Convention on Human Rights and whether Big Pictures was allowed to take the pics and sell them for publication under its rights to freedom of expression, which are guaranteed in Article 10 of the ECHR. The 8/10 balance swung in Rowling’s favour, but only because of a landmark case involving Princess Caroline of Monaco. If you’re interested, a report on that is here at 5RB.

Posted from PHUQUE.

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