The Law and Photography of people

After an exhaustive debate on social media today I decided to write an article to clear up the issue of  what you may or may not photograph. There are many opinions out there, but the law is not that ambiguous. If there is a law prohibiting you to do something then you may not do it. If there is no law specifically prohibiting you to do something then you may do it. Laws typically don’t dictate what you can do, but dictate what you cannot do.

In South Africa photographing people in public is legal (1). Reproducing and selling photographs of people is legal for editorial and limited fair use commercial purposes. There exists no case law to define what the limits on commercial use are. Civil law requires the consent of any identifiable persons for advertorial and promotional purposes. Property, including animals, do not enjoy any special consideration.

During the media coverage of the Nkandla controversy it emerged that there exists a law, the National Key Points Act, 1980, prohibiting the photographing of any “national key points.” National key points are buildings or structures that serve a strategic or military purpose. Though it wasn’t revealed what these are as part of state secrecy it was claimed that the presidential residence is one of them and should thus not be shown in media. Subsequent court action resulted in it being ruled that a list of all key points be made public. 

There are two very important distinctions that you need to keep in mind. 

  1. Photographing for non commercial (2) purposes. i.e. where the photograph is not used to generate revenue or advertise something that is a commercial venture. If you are paid to take a photograph but the photograph will be used by a non-profit organisation then the photograph is for non-commercial purposes. Just because you are paid to take a photograph does not make the photo commercial.
  2. Photographing for commercial purposes. i.e. where the photograph is sold online or is used in an advertising campaign for a commercial venture. 

If you are photographing someone who can been seen from public property or from your own private property and you are going to use the photograph for non-commercial purposes, editorial or limited fair use commercial purposes, then you are allowed to photograph that person without their consent.

If you are going to be using the photograph for an advertising billboard and the person is recognizable then you must have the consent of the person you are photographing. This consent is typically in the form of a model release form (3). A model release should ideally be in writing because verbal agreements can be disputed in a court of law.

If you are doing a shoot for a client on the property of the client, then the copyright of the photo’s will vest with the client and the client will need to get the consent from the people in the photographs, if the shoot is going to be used for commercial purposes. 

The above applies to adults and children.

Some frequently asked questions:

  1. I am being paid to do a shoot at a venue. The venue is my client. The photo’s will be used on a outdoor billboard. The people will be recognizable in the photo. Do I need their consent?

    Yes.

  2. I am walking down the street and take a few photos of children playing in a park. May I do that without asking permission?

    Yes, but they may not understand the law and necklace you in the street. Better to get permission first.

  3. I am standing in the street and there is a person on their balcony. May I photograph that person without their permission?

    Yes.

  4. I am taking a photo of someone with their back turned to me in a public area. May I take the picture and sell it on a stock image website?

    Yes.

  5. I am in a shopping center. May I take pictures of the people walking around?

    Find out if the shopping center specifically prohibits you from doing it. If they don’t, then you may. 

Obviously the above answers are subject to the commercial vs. non-commercial points I made above.

References

  1. Burchell, Jonathan (2009). “The Legal Protection of Privacy in South Africa: A Transplantable Hybrid” (PDF). Electronic Journal of Comparative Law.
  2.  Defining Noncommercial report published”, Creative Commons.
  3. http://asmp.org/tutorials/frequently-asked-questions-about-privacy-and-libel.html.

Marthinus Strydom

Marthinus is a venture capitalist and private equity investor. He is the Chairman and Chief Executive Officer of the MJS Capital Group.

6 thoughts on “The Law and Photography of people

  • 28th June 2017 at 9:10 pm
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    Hi,
    There is also the issue of how you use the image. This quote comes from the case quoted below, if I still have all my ducks in a row. This is from an oldish post on my deviantArt site.

    Firstly, a person’s right to identity is violated when the attributes of that person are used without permission in a way which cannot be reconciled with the true image of that person. Apart from the unauthorised use of a person’s image, this kind of infringement also entails some kind of misrepresentation concerning the individual, such as that the individual approves of or endorses a particular product or service …, while this is not the case. The unlawfulness in this kind of case is found in the misrepresentation concerning the individual and, consequently, in the violation of the right to human dignity.

    Secondly, the right to identity is violated if the attributes of a person are used for commercial gain without authorisation by another person. Apart from the unauthorised use of the individual’s image, such a use also primarily entails a commercial motive, which is exclusively aimed at promoting a service or product or to solicit clients or customers. The unlawfulness in this case is found mainly in the infringement of the right to freedom of association and the commercial exploitation of the individual.

    Longish quote, but kind of wraps up all the issues. The full text can be found at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1869743

    Grant H

    Reply
  • 28th June 2017 at 1:42 pm
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    Thanks for this… very informative.
    Question though….. what of public places and the fact that “officials” are harassing photographers (Bearing in mind that everyone with a cell phone is also a photographer.
    How do people claim rights to photos of Table Mountain, or any other public place or view? Is there validity in that, or should they just be told to get lost?

    Reply
    • 12th October 2017 at 12:29 pm
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      Nobody can stop you from photographing public places. Tell them to get lost. Be carefull though that you are bot trying to photograph a national key point. I will post of list of these soon.

      Reply
  • 28th June 2017 at 10:53 am
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    An impacting act that need to be included in this analysis will be the newly enacted Protection Of Personal Information Act that will greatly affect the subjects rights, whether consenting or not, and the Photographers duties to protect such rights. He is ultimately recording Personal Identifiable Information regardless of purpose. This aligns with General Data Protection Regulation (GDPR) and therefore will result in same Legal Requirements for South Africa as exist in other countries.

    Under GDPR an European resident can take legal action against South African Photographers if they as much as post images of them on the photographers personal site and Google, Facebook, etc. have already enable “Like Image” search and Facial recognition to comply with this.

    The PoPI legislation basically considers your personal information to be “precious goods” and therefore aims to bestow upon you, as the owner of your personal information, certain rights of protection and the ability to exercise control over:

    – when and how you choose to share your information (requires your consent)
    – the type and extent of information you choose to share (must be collected for valid reasons)
    – transparency and accountability on how your data will be used (limited to the purpose) and notification if/when the data is compromised
    – providing you with access to your own information as well as the right to have your data removed and/or destroyed should you so wish
    – who has access to your information, i.e. there must be adequate measures and controls in place to track access and prevent unauthorised people, even within the same company, from accessing your information
    – how and where your information is stored (there must be adequate measures and controls in place to safeguard your information to protect it from theft, or being compromised)
    – the integrity and continued accuracy of your information (i.e. your information must be captured correctly and once collected, the institution is responsible to maintain it)

    “Personal Information” for an individual include, but is not limited to:

    – Identity and/or passport number
    – Date of birth and age
    – Phone number/s (including mobile phone number)
    – Email address/es
    – Online/Instant messaging identifiers
    – Physical address
    – Gender, Race and Ethnic origin
    – PHOTOS, voice recordings, VIDEO FOOTAGE (also CCTV), biometric data
    – Marital/Relationship status and Family relations
    – Criminal record
    – Private correspondence
    – Religious or philosophical beliefs including personal and political opinions
    – Employment history and salary information
    – Financial information
    – Education information
    – Physical and mental health information including medical history, blood type, details on your sex life
    – Membership to organisations/unions

    Reply
    • 12th October 2017 at 12:33 pm
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      The practical enforecement of this is going to be impossible. The international view that if you can be see someone with your eyes and you are standing in a public place then you have the right to take a photo. The internatioanl law still does bot distinguish between what you can see with your eyes and capturing that which you can see with a photo. It makes sense because if that were illegal then just looking at someone and then remembering their face would be illegal. We’ll watch POPI closely and see how it will be enforced.

      Reply

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