I Broke the Law: The Forgotten Boundaries

This week I committed a crime…

Okay, so it was an accident, and something that almost anyone could be accused of – but still!

This week’s task involved photographing someone in a public space, using a mobile device, within viewing distance of a public screen. This itself is completely legal, as there are currently no rights to privacy that protect a person’s image in Australia (Arts Law Centre Australia 2016, p. 2). Individuals are typically permitted to take photographs of buildings, people and sites in public places without punishment.

Despite my discomfort at the idea, I set out with the goal of capturing the all-too-common “food court phone zombies”. These are the people that can sit absorbed in their handheld world for hours at a time, seemingly unaware of the shopping mall chaos enveloping them.

 

Woman_texting_while_eating_while_using_laptop.jpg
Source: Jason 2012, “Woman texting while eating”, shared on Flickr under under CC BY-NC-ND 2.0

Sure enough, when I arrived the food court consisted almost entirely of phone zombies, not a magazine or discussion in sight! Anyone that wasn’t on their phone was either watching the digital television overhead, or experiencing some kind of food-induced euphoria, face in the noodle bowl. I quickly whipped out my phone and snapped a shot, hoping that no one would turn in their seat!

foodcourt 2_Fotor
The offending photograph, taken at a local shopping mall

Unbeknownst to me, what I did when I clicked that camera button was break the law. While many of us would argue that a shopping mall is a public place, where we are free to take all the photos we desire, it isn’t. Although we have free access to the mall, it is considered private property, and photography without permission is illegal (Arts Law Centre of Australia 2016, p. 3). The same goes for seemingly unrestricted areas such as sports arenas, nursing homes and, most controversially, music venues.

So why didn’t I get arrested for that shopping selfie last week then?

Well, the main explanation for this is that in most cases, mall security and police have given up policing the rule (Stacks Law Firm 2013, p. 1). Unless they are making a scene, or visibly harassing others, a person is unlikely to be prevented from taking a photograph.

With 84 percent of Australians now owning a smart phone, it is almost a given that someone has taken an image with you in the background (Drumm, Swiegers & White 2016, p. 6). So, legalities aside, if I had published my photograph, what would the ethical consequences have been?

Taking a photograph of others without their knowledge, even in a public place, raises definite ethical questions. Is it okay to show faces? Should you ask permission before the photograph? The most common response seems to be:

 “Ask yourself, if I take this photograph, am I doing so with meaningful intentions? Or because I want to make an interesting or gritty photograph”

(The ethics of street photography 2013).

When taking photographs of strangers, it may pay to follow these ethical ‘rules’:

1) Be Streetwise: Don’t take photographs in dangerous situations, or in a way that could bring harm to yourself or others.

2) Have Empathy: If you were in this photo, how would you feel? If someone in the shot will be portrayed in a negative light, or feel violated, then maybe the photo isn’t ethically sound.

3) Know why you’re taking the photo: Will the image be used bring about positive consequences, or as a chance to educate others?

4) Don’t act like a creep: Making others feel uncomfortable, or behaving in a ‘stalker-ish’ manner, can make a perfectly innocent photograph appear like harassment.

Considering these rules, I made sure to take the photograph from a distance and at an angle that obscured all but one person’s face. I intended to use photo editing software to obscure the remaining individual beyond recognition. Furthermore, none of the phone screens were readable, meaning that the subject’s private doings were kept that way. As this image was intended for educational purposes, I felt that it was not unethical to publish on my blog.

It was however, illegal to do so.

I find it interesting that in a private space such as the mall, we tend to behave exactly how we would at a park or beach, irrespective of photography laws. In the age of digital technology, our ethical considerations when taking photographs featuring strangers arguably weigh heavier than legal restrictions.

References:

Arts Law Centre of Australia 2016, Street Photographer’s Rights, Arts Law Centre of Australia, viewed 7/9/2017, Accessed: <  http://www.artslaw.com.au/images/uploads/Street_photographers_rights_2016.pdf >

Stacks Law Firm 2013, When Photos Break the Law, Legal Light, viewed 9/9/2017, Accessed:

< https://www.stacklaw.com.au/news/criminal-law/when-photos-break-the-law/ >

Drumm, J, Swiegers, M & White, N 2016, Mobile Consumer Survey 2016: The Australian Cut, Deloitte, Accessed: < http://landing.deloitte.com.au/rs/761-IBL-328/images/tmt-mobile-consumer-2016-final-report-101116.pdf >

BBC Religion and Ethics 2013, Q&A: The Ethics of Street Photography, BBC Religion and Ethics, viewed 9/9/2017, Accessed: < http://www.bbc.co.uk/religion/0/21532400 >

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