JoziFolk - street photography in South Africa

  

The law and street photography in South Africa

 

 

 First the disclaimer: I am not a lawyer, or qualified in any way to give legal advice. This article is the result of my research and is offered for informational purposes only. If in doubt, consult a registered legal practitioner.

 Now that is out of the way, let's get on with it.
 Here is the bottom line when it comes to taking photographs in public places in South Africa.
 In South Africa, any person can take a photograph that includes any other person, without permission. A photographer does not need your permission to take your photograph, if he or she is on public property when he or she does so. It does not matter that you may be on private property at the time, for example, on the upstairs balcony of your home and a person walking past on the public pavement outside, snaps your picture.

Seen from a public area

 You have the right to take photos of anyone or anything if it can be seen from a public area. This includes parks, city streets and sporting events or concerts. This also allows for any private property or buildings to be shot from within the public domain. Any person and member of the public is basically wavering their right to anonymity or privacy by appearing in these areas and is therefore fair subject matter for images.
 "Whoa! Hold on!" I can almost hear you scream. "There must be some exceptions."
 Yes there are.
 Members of the public only have rights in a place where privacy is a reasonable assumption. Put your camera away in restrooms, private houses, changing rooms etc.

Only restriction

 The only other restriction on what may or may not be photographed is that specifically placed there by government and covers matters of national security. This usually means military installations and infrastructure and can include police stations, airports, bridges, consulates, embassies, transportation facilities and border crossings. Taking a photograph of any of these is illegal and will likely end you in hot water.
 The problem in many cities in South Africa, unlike other cities in the world, is, most of the places where members of the public gather, are privately owned. Shopping malls immediately spring to mind and there, photographers are subject to the terms and conditions laid down by the owners or managers of the property. Often this includes a "no photography" condition.
 Most shopping centres have “no photography’ signage posted at all their entrances and can refuse you permission to enter or ask you to leave. Security guards are within their rights to prevent your taking photographs and ask you to leave but they may not confiscate your equipment, destroy images or detain you in any way. Should you refuse to leave they may bring a charge of trespass against you.
 It is important to bear in mind many locations that seem to be public places are, in fact, privately owned. Two examples are the V&A Waterfront in Cape Town and Melrose Arch in Johannesburg.
 Okay, you've shot a cracker photo of someone on the street, what are you allowed to do with the image?

Fair use

 Images of people for personal or "fair use" purposes include: news, satire, works of art and informational or educational purposes. This means you can legally publish the image on your news or photographic arts blog. You can also sell that print as an artwork, without the subject's permission.
 However, the photographer may not use an image in a way that misrepresents the subject. That is to say you cannot publish the photograph in a context that directly states or implies anything about the subject that is untrue. This would constitute an act of libel and may lead to legal recourse against the photographer.
 If you plan to use the image for commercial purposes (create an advertising campaign or sell it to a stock-photo agency, for example,) you will require a model release signed by the person photographed. An individual has sole rights to their persona being used for commercial promotion.
 In a nutshell for street photographers:
  • I have broken no law by making a photograph of you.
  • I am under no obligation to explain to you what I am doing or why I am doing it.
  • I am under no obligation to show you the photograph I have made.
  • I am under no obligation to identify myself to you.
  • The photograph I have made is legally my property.
  • Although I don't do it, I am fully within my rights to continue making photographs of you while you are in conversation with me.
  • If you attempt to physically restrain me from doing so by touching my person, you are breaking the law. If you do not wish to be photographed the only legal way you can prevent it is to move away from the scene.
  • If you threaten me physically you are breaking the law.
Judgement

 A smile and an explanation will diffuse most situations. Showing the subject the image and offering to email it to him or her, goes a long way and will often result in an invitation to take more photographs.
 But, in the end you need to make a judgement call. Trying to explain your legal rights to three, steroid-addled, bouncers, who insist you delete the photo you shot of them while they stood outside on the pavement, may be an exercise in painful futility. Only you can decide if the photograph is worth the hassle.

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A perfectly legal image. Photographed in a public place.
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