Harassing photography and recording; ethics and policies

We’re starting to collect some examples of photography/recording harassment experiences (still open , and some of the kinds of problems people mention there and elsewhere are:

  • photography/recording conducted in a way that is designed to hide the fact of the photography/recording from the subject both before and after the shot/recording happens
  • photography/recording that is indifferent to or careless of the subject’s feelings about being photographed/recorded
  • photography/recording that is othering: “wow, women! *click click*” or “hey, babe, smile for the camera!” or later posted with othering, sexist or creepy commentary
  • failing or refusing to stop photographing/recording on an explicit request or appearance of discomfort (eg turning away or frowning or covering one’s face, etc)
  • publishing photographs without the subject’s consent, or after the subject’s explicit refusal of consent
  • use of photographs to implicitly or explicitly endorse an event or community, eg, using pics of smiling participants from the previous year in publicity materials, without consent

Now most of these things are legal in my region (see NSW Photographer’s Rights, which as you will guess from the title is not focussed on subject’s concerns, but which is informative) and in many others. I believe the only exception (in NSW) may be the last, because the use of someone’s image to promote a product requires a model release, that is, consent from the subject. Whether/when using someone’s photo on a website is considered promotion I don’t know but that’s a side point.

For that matter, I’m not even arguing that they should be illegal or actionable (in this piece anyway, perhaps some of them are arguable). I’m sympathetic to many of the uses of non-consensual photography, even (art, journalism, historical documentation). I’m arguing more narrowly that in the context of geek events, which are usually private and which can therefore impose additional restrictions on behaviour as a condition of entry, that restrictions on photography could prevent some harassment. (As a short and possibly sloppy definition for people who haven’t seen many harassment discussions, I would define harassment as “unwelcome interpersonal interactions, which either a reasonable person would know are unwelcome, or which were stated to be unwelcome but continued after that.”)

I’m arguing that this collection of behaviours around photographs makes geek events hostile to some participants, especially women. After all, even though it’s (I think) legal to sneak-photograph a woman’s face, write a little essay about how attractive you find her and try and get it on Flickr Explore even as she emails you to say that she’s upset and repeatedly request that you take it down, that doesn’t mean it’s ethical.

Now, obviously it would be nice not to have to spell ethical behaviour out to people, but the need for anti-harassment policies (and, for that matter, law) makes it clear that geek events do need to do so.

There’s quite a range of possible policies that could be adopted around photography:

  • the status quo, obviously, which at many geek events is that any photography/recording that would be legally allowed in public spaces is allowed there;
  • photography/recording should be treated like other potentially harassing interpersonal interactions at an event, that is, when one person in the interaction says “stop” or “leave me alone” (etc), the interaction must end;
  • photography/recording shouldn’t be done in such a way as to hide from the subject that it’s happening, and upon the subject’s request the photo/footage/etc must be deleted;
  • subjects cannot be photographed/recorded without prior explicit consent; and/or
  • the above combined with some kind of explicit opt-in or opt-out marking so that one doesn’t need to necessarily ask every time if one can see the marking (in various conversations on this I have to say my main concern tends to be the need to peer closely at people’s chests to see their “PHOTOS/VIDEOS OK” or “NO PHOTOS/VIDEOS” marking on their badge, however, Skud says it works well at Wiscon).

There might be certain additional freedoms or restrictions regarding crowd photography/recording and/or photography/recording of organisers, scheduled speakers and people actively highlighted in similar formal events.

What do you think? Whether a photographer/videographer/recorder or subject of same, what do you think appropriate ethics are when photographing/recording at private geek events, and what do you think could/should be codified as policy?

Note to commenters: there are a couple of things that tend to come up a lot in these sorts of discussions, which are:

  1. “but this is perfectly legal [in my jurisdiction]“
  2. some geeks, including geek photographers, are shy and asking strangers for permission to photograph them is a confronting interaction, and thus very hard on shy people

I’m not saying that you need to totally avoid discussion of these points in comments here, but you can safely assume that everyone knows these points and has to some degree taken them into account and go from there. (My own perspective on the last one is that it’s odd at best to pay an enormous amount of heed to the social comfort of photographers at the expense of their subjects. You could, of course, consider both together.) Also if talking about legal aspects, do specify which jurisdiction(s) you are talking about: this is an area where laws vary substantially.

11 thoughts on “Harassing photography and recording; ethics and policies

  1. Skud

    Just to be clear… WisCon doesn’t use badge markers for photos, but requires explicit verbal permission for any photographs to be published. Here’s what their policy says:

    Almost everyone who has a cell phone has a camera, and almost everyone who comes to WisCon has a cell phone. Video and audio recording and photography for personal archival use only is generally okay, unless individuals make it clear that they do not wish to be photographed or filmed, in which case any photography or recording of them is expressly forbidden.

    Please be polite and ask before taking photographs or recordings. We suggest that photographs be taken before or after a program event to avoid distracting panelists and audience members from their discussion.

    You agree to be solely responsible for clearing any and all rights and permissions for any use(s) you might make of the photographs, recordings,transcripts and similar material you take from the convention. Such material may not be posted to any commercial website or commercially operated streaming server including but not limited to YouTube, nor used for any commercial purpose whatsoever. Please ask permission of the subjects before posting to any generally available web sites including unlocked Flickr, Facebook, or LiveJournal accounts

    (I could pick holes in this, especially the “commercial” part of it, but won’t bother, as it’s kind of beside the point.)

    The event I’m thinking of with badges was a conference specific to a sexual subculture, with a broad community understanding that photos of attendees could constitute “outing” and was not ok. However the event used different coloured badges so that people who were OK with photos could indicate that. The badge preferences were something you selected at registration time, when you specified your “badge name”.

    If I were doing this for a geek event, I’d use those stick-on ribbons (the ones that hang below your badge) in green (“PHOTOS OK”) and red (“NO PHOTOS”). The colour should be clear enough that you don’t have to peer too closely at anyone’s chest to find out their preferences. What the default should be (i.e. what to do if someone’s not wearing a badge ribbon or you can’t see their badge) would still need clarification.

    1. Mary Post author

      Another note: green and red in particular (and perhaps the use of any colour as the only signal in general) have an accessibility problem. But a reasonable fix might be having complete redundancy: shape and colour.

      1. azurelunatic

        Off the top of my head, I’m thinking:

        Red ribbon, black line art of a camera, black circle-with-slash “no” symbol.
        Green ribbon, black line art of camera, black check mark.
        White ribbon, black line art of camera, black question mark.

  2. Bruce Byfield

    I’m curious: Do the ethics change when someone is in costume? On the one hand, costumers presumably want people to enjoy or admire their work or their persona. But, on the other hand, assuming that someone can be photographed freely because they are in costume sounds uncomfortably like assuming that a person deserves what happens to them because of the way they are dressed,

    Obviously, there are private moments when nobody should be photographed. And you probably can’t go wrong if you always ask first. But are the rules different or laxer for people in costume?

    1. Mary Post author

      I don’t know that the rules is quite the right phrasing: I think it’s quite possible the most ethical answer to these questions could legitimately vary by event.

      As a non-costumer myself though I have to admit I don’t have good intuitions on that one!

      1. Eivind

        I tend to assume the rules are different for people in costume if, and only if, they’re either deliberately posing for the crowd, or publicly performing for the crowd.

        If you do your damn best to give the impression that you desire attention, want people to look at you and notice you, and actively pose, my first assumption is going to be that you’re okay with a photo of that. (but I’d not -publish- that photo without asking)

        But I don’t think it’s generally -more- okay to photograph Legolas the Elf at the lunchtable at some convention than it would be to photograph the same person in the same situation, without a costume.

    2. azurelunatic

      I have a few thoughts on this.

      One, someone who’s dressed up even unusually isn’t necessarily in costume — one of Mary’s and my mutual friends enjoys the Japanese “lolita” fashion, which involves enough ruffles and lace to make one resemble a turn-of-the-previous-century doll. It’s a rare enough fashion in the US that she’s not offended when people ask her if she’s in costume, but if people assume she is in costume, she will correct them. People wearing their ordinary clothes will often have somewhat different body language than when they are in costume, but it may take someone skilled in body language nuance and/or familiar with the person to notice the difference.

      Two, even when someone is clearly and without ambiguity dressed for attention and enjoying the attention that they are receiving, they still have relative control over the forum in which they’re getting the attention. They’re physically present in what’s entirely possibly a location not open to the general public (especially at a convention where one has to get membership), and they’ve got a reasonable idea of what audience is going to be there. They possibly don’t know what sort of audience the photos are going to end up in.

      Beyond that, I personally am more likely to be willing to be photographed when I am in costume, and I am also all right with the exchange where I grant permission for the photo to take place nonverbally. Those exchanges tend to take the format of someone holding up their camera very obviously and looking at me questioningly; maybe they point to the camera. I nod, bow, or curtsey, and pose so they can get a good shot. The fact that it’s nonverbal does not make it less of a conversation.

      Things like costume contests, which involve the contestants getting up in front of the audience, I would think of as having somewhat different rules than ordinary convention space. The rules for the costume contest should notify both the audience and the participants what to expect with photography.

  3. Eivind

    While law and ethics are distinct, and not everything is okay just because it’s legal, I think it might be helpful to look at laws as a source of possible rules.

    That is, if a certain behaviour is *outlawed* in some jurisdictions, then perhaps it’s potential for being unwanted is high enough that having rules against it may make sense. (when the conference in question is in a jurisdiction where it’d otherwise be legal, I mean)

    One primary example of this, is the publishing of portraits of others, or the using of same for promotional purposes without their consent. This is illegal in many jurisdictions, and I think it’s at a minimum very rude even in jurisdictions where it’s allowed.

    But these things are tricky: a blanket-ban on publishing any picture with a recognizable person in it, would mean a blanket-ban on publishing -any- picture taken in a crowded place, so such laws typically make exceptions. The problem is, you don’t really -want- a 10-page legalese-dense explanation about photography-policy for a random event, you want simple and clear and understandable.

    I’ll use my jurisdiction as an example:

    The law distinguishes between a photo where you are the motive, and a photo where you are not the motive, but you just happen to be in it. That is, a picture specifically of *you* can’t be published without consent, but a photo where you happen to be part, can be. (the legal test is aproximately: “if you walked out of the frame, would the picture still be substantially the same picture?”) This means you can’t stop me from publishing a picture of the crowd, even if you’re recognizable. Because the judge would say, if you left the crowd and I took another pic, it’d still be substantially the same picture.

    The law -also- makes exceptions for matters of public interest (a cop comitting some abuse can’t use these laws to stop the publication of pictures of him doing so, for example) and for people who step into the limelight. That is, if you’re holding a lecture, adressing the general public, I can publish a picture of you doing so, without requiring your consent.

    In short, it’s complicated, and that’s only dealing with one aspect of it, namely publication.

    CCCC (Chaos Computer Club Camp) near Berlin that I attended a few years ago had a unformal rule, phrased something akin to: “Remember that not everyone likes being photographed or filmed, we expect all participants to behave in a respectful and polite manner.”

    This fails to be concrete, but I still think it’s worthwhile having in the groundrules, and it gets bonuspoints for being simple and non-legalese.

  4. AMM

    I’d like to expand on something that Skud alluded to: that even if you don’t intend to harrass, if you make public a photo of someone without checking with them first, you can cause a lot of harm.

    An obvious example is if someone is in a subculture such as LGBT or BD/SM, and doesn’t want family or employers to know about it.

    But there are situations that aren’t so obvious. I was at a contra-dancing event a while back, where someone asked that people not post pictures with him in them. When I asked around, I was told that his employer was based in a country where men dancing with women would be considered immoral, and pictures of him doing so might cause him problems at work.

    You don’t know what circles someone may move in, and if you post a picture of someone on the web, you have no control over where it might go or how it might be misused.

    So, IMHO, you should never post or otherwise make public a picture without making sure you have permission from everyone in the picture to do so. Whether it’s commercial might — or might not — affect your legal position to use someone’s picture without permission, but not whether it’s ethical.

    (Since this is the WWW, I suppose I need to add that I would make an exception for legitimate news stories. You don’t need Blagojevich’s permisison to post a picture of him being hauled off in handcuffs.)

  5. kaberett

    The Discworld Convention in the UK has a policy that explicit permission must be requested before taking photographs, however a person is dressed and whoever else you’ve seen taking photos of them, and this is repeated (in the welcome pack, in the welcome speeches, etc). First convention I ever went to, and I’ve booked in for 2012’s alreaady; it was a comfortable and welcoming environment, and it was wonderful.

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