expectations of privacy in public places

Over the past few days, I’ve had a series of interesting conversations with people about privacy and their rights.  Particularly with regard to having photographs or videos taken in public areas.

This is something that is interesting to me as I often work as a public figure (musician, family entertainer, clown and “cosplayer”) and control of how my public personae are presented is an important concept for me.

Rocky1

These days where everyone who has a phone has a camera and almost instant access to publishing the videos or photos they take, controlling one’s public image is becoming more and more difficult.  It has made me even more aware of how I behave and act in public and a lot of my focus when I’m “in character” is about how I am perceived.

One thing that IS clear is this:  In the modern age, if you are in a public area and dressed in what can be considered a “costume,” “getup” or “drag,” you should EXPECT to be photographed or stopped.

PEN Canada’s formal statement on photography in public places sums this issue succinctly:

“People are welcome to take pictures or film in malls, transportation centres, and the like, unless posted signs specifically prohibit it, or until they are requested to desist by a representative of the owners of the property.  In such an instance, though the owners or their representatives (such as a security guard) are within their right to request a halt to any further photographic activities, they have no legal right to force the deletion or destruction of photos that have already been taken.  The publication of these photos is a separate issue and may be affected by other applicable laws.”

Photography blog, Ambient Light, has a great guide to public photography laws which includes what one’s individual rights on privacy entail:

“You cannot photograph a person who has a ‘reasonable expectation of privacy‘. This is someone who believes that they are in a private location and no-one is watching them, such as a person in a bathroom.”

The key words here are “private location.”  On public property, like side walks and city streets.  Photographers can photograph anything that a normal person could see from public property.

In other words:  if you are in public, photographers are legally allowed to capture your image.  If you are at a public event or street fair and in some form of “costume” that makes you stand out from the crowd, you should expect to be photographed.  Yes, it would be preferable if they asked your permission, but it is not necessary for them to do so.

Where it can become an issue for you is if they use that photograph for commercial purposes.

On property that is privately owned, but open to the public, like malls, galleries, etc. Although you should ask before taking photos, if there aren’t any “no photography” signs, photos can be taken unless the photographer is told otherwise by the owner, property manager, security guard, or other representative of the owner.

This is why a number of events or conventions have recently added signs that state “cosplay does not equal consent.”  Most conventions have signs posted that state that people MUST ask for permission to take photographs of others, particularly cosplayers. With the recent boom in cosplay popularity, it became quite typical for people to “ambush” cosplayers and take pictures that were often less than flattering.  Prior to this a lack of rules around photography created the potential for cosplayers to be subject to unwanted physical contact and even abuse.

Many “adult-themed” events and locations now have a no-cameras rule to allow attendees a level of privacy.  Often only “sanctioned” photographers are allowed.

Theme parks like Disney actually have locations where one can get photographed with costumed characters.  This allows more “one-on-one” time for folks with their favourite characters and allows Disney to control the behaviour of the guests getting the pictures and video.

As someone who is often in the public eye and is acutely aware of their image, having an unflattering or even just an unwelcome photograph taken can be an annoyance, but is part and parcel of having an unusual public persona.  I have found that an unwelcome photographer can be at least paused with an “I’d prefer that you not take my picture at the moment.” (usually while the clown is setting up or eating lunch), most do pause and allow me time to compose myself for a photograph at least.

However if they do not, I cannot stop them if I am visible from public property.  If it is on private property or in a controlled access event, I can report the photographer.  If they are peering through a window or over a fence, I call the police…

Every time I step out of the house in my performance clothes, either as Myke Hutchings, musician, Rocky the Clown, or in my Steampunk clothing, I leave the house with the expectation that I will be photographed or filmed.   When Rocky used to take the GO Train into Toronto for gigs, I had a sign that read “Clown at Work” on a plunger that I stuck to the window beside me, in case I napped…there are a few cute photos of a sleepy clown floating around…

If you are presenting a public persona beyond yourself, you should expect to be photographed.  Try to be polite and gracious at all times, even if you are saying “please don’t.”

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