Street and privacy

Learning goal

You will be able to explain in broad outline the legal and ethical limits of taking photos on the street and publishing those photos. You will tell apart taking a photo in a public space from publishing it on the internet, in an exhibition or in an advertisement, and learn that a recognizable face can count as personal data and that in Türkiye personal data is protected by Law No. 6698 on the Protection of Personal Data (KVKK). You will see in its general logic how this law treats processing for artistic purposes and within freedom of expression, on condition that it doesn't violate the privacy of private life and personality rights. You will know that the rules change from country to country, and before publishing a frame you will question the person's private life, dignity and vulnerability. You will think separately about whom you photograph on the street and how you show them, especially people of different skin tones and people in fragile situations. You will keep in mind that what is described doesn't replace a lawyer's opinion.

The question

The street frame much admired at the exhibition won't leave your friend's mind: at a bus stop, under the rain, an elderly woman with her eyes closed. Your friend doesn't know her and has no permission. A club member says, "On the street you shoot what you like, it's everyone's place." From the far end of the table a young member studying law objects: the woman's face is now data, and the responsibility for opening that data to everyone lies with the photographer.

Your friend senses that both answers may be partly right, but doesn't know where one ends and the other begins. Is it legal to take photos on the street? And to show what you shot?

Context

In the street photography lesson we talked about catching unstaged moments in public space and showing a person without othering them (Lesson 16.3). In the copyright lesson you saw that the photo and the face in a portrait can have two separate owners (Lesson 29.1). While preparing release forms, too, you saw that even a tattoo or a piece of clothing can make someone distinguishable (Lesson 29.2).

What is described is a road map; a definite answer on whether a frame can be published can only be obtained from a lawyer. The protection of personal data and the privacy of private life are regulated differently from country to country, and interpretations develop through court decisions. No detailed legal provisions are given here; only the questions a photographer needs to ask on the street are described.

Simple explanation

Why are taking and publishing different?

In many countries, taking photos in a public space, that is, on the street, in a square or in a park, is generally free; it is accepted that someone in a public space can be seen there. But taking is only the beginning of the story. Publication is a photo being presented in a way others can see, on the internet, in an exhibition, in a book, in a newspaper or in an advertisement. Legal and ethical questions usually grow heavier not at the moment of the shot, but at the moment of publication. While a frame sits in a personal archive it touches no one; when shared on the internet, on the other hand, it can be copied, torn from its context and circulate for years. That is why the decision to publish is made more slowly and more carefully than the decision to shoot.

Personal data is any information belonging to an identified or identifiable person. A recognizable face, a photo showing that a person was in a place at a moment, can fall under this definition. In Türkiye personal data is protected by Law No. 6698 on the Protection of Personal Data. This law keeps outside its scope the processing of personal data for artistic, historical, literary or scientific purposes, or within freedom of expression, on condition that it doesn't violate the privacy of private life and personality rights and doesn't constitute a crime. This gives the street photographer a wide space; but its limit is the private life and personality rights of the person photographed. Commercial uses such as advertising fall outside this exemption and require a model release.

Where does private life begin?

The right to privacy is the protection of the space a person wants to keep to themselves in their home, body, health, relationships or beliefs. Even in a public space this space doesn't disappear completely. Photographing in close-up and publishing someone crying at a hospital door, a relative at a funeral, or someone eating inside through a café window can count as entering the person's private life. Looking into a home through a window, or entering a closed space with a long lens, goes beyond the limit of public space.

Many countries' rules differ. In some countries publishing photos taken in public space is broadly free, in others people have a much stronger say over their own likeness. When working abroad you need to learn that country's rules separately.

The artistic and expression exemption is the processing of personal data for artistic, historical, literary, scientific purposes or within freedom of expression, without harming the privacy of private life and personality rights, being counted outside the law's scope. This exemption lets street photography and documentary exist; but it doesn't automatically protect every frame. A street frame can go outside the space this exemption protects if it humiliates the person, exposes a moment of their private life or turns into an advertisement.

What questions are asked before publishing?

A vulnerable person is someone whose power to protect themselves is reduced because of age, health, poverty, being a migrant, being in a crisis or another situation. In street photography the most debated frames are often of these people: someone lying on the street, a begging child, an elderly woman worn out in the rain. They may not be in a position to object to where their image will circulate.

Before publishing a frame a few questions can be asked: Is this person recognizable? Does this photo show a moment from their private life? How would they feel if they saw this frame themselves? If I were in their place, would I want this frame published? Does the photo show them as a person, or only as the symbol of a situation? There is also a separate question in terms of skin: on the street, am I always photographing people of the same skin tone, from the same neighborhoods, in the same images of poverty; am I showing some people only in suffering or deprivation? The answer to these questions can lead to not publishing a frame, making the face unrecognizable, or finding the person and asking them.

Visual evidence

Your friend opens the bus stop frame again. The elderly woman's face is clearly recognizable, her eyes closed, tired. At the exhibition this frame had touched a viewer; but the woman herself might not have wanted that tired moment of hers hung on a wall. Your friend decides not to share the frame on the internet and tells the exhibition team they won't use it in future exhibitions either.

In another frame from the same day, people are running with their umbrellas at the same stop; their faces can't be made out, and the frame tells of a moment of rain. They share this frame. Looking at their own street archive, they notice they have shot many frames of the neighborhood's poor corners and dark-skinned workers, but always shown them in moments of tiredness or waiting.

The following week they start a new series by talking with a few of the same people, getting their permission and photographing them in the mastery of their work.

Common mistakes

Summary

Taking photos in a public space is generally free in many countries, but the real questions arise at publication; a recognizable face can count as personal data, and in Türkiye personal data is protected by Law No. 6698 on the Protection of Personal Data. This law keeps processing for artistic, historical, literary, scientific purposes and within freedom of expression outside its scope as long as the privacy of private life and personality rights aren't harmed; commercial use, however, requires a model release. Before publishing, the person's private life, dignity and vulnerability are questioned, how people are shown is looked at, and in concrete situations a lawyer is consulted.

Mini assignment

In this assignment you will review your street archive in terms of publication questions.

1. Choose ten frames you shot on the street that include recognizable people.
2. For each frame fill in a table: is the person recognizable, does the frame show a moment from their private life, is the person in a vulnerable situation, will the frame go to a commercial use?
3. Opposite each frame write a decision: publish, don't publish, make the face unrecognizable, or find the person and ask.
4. Count which people, from which neighborhoods and in which situations you have shot in your archive; if you always show a group in the same situation, plan a shoot that will show them from another side. Write what you would ask a lawyer when you can't be sure about a frame.

Check yourself

• Can you explain with an example why pressing the shutter and opening the frame to the world are separate decisions?
• Can you tell the situations the artistic and expression exemption protects from those it doesn't?
• Did you assess how you show vulnerable people in your own archive?

Glossary

Mini quiz

1. In street photography, at which stage do legal and ethical questions usually grow heavier?

• A) When buying the camera
• B) At the moment of the shot
• C) When publishing the photo
• D) When backing up the file

2. By which law is personal data protected in Türkiye?

• A) Law No. 6698 on the Protection of Personal Data
• B) Only by trade rules
• C) By no law
• D) Only by municipal decisions

3. In which case may the artistic and expression exemption not protect a frame?

• A) When the frame is black and white
• B) When the frame exposes private life or humiliates the person
• C) When the frame is shown in an exhibition
• D) When the frame was shot in the rain

4. What can be done before publishing a recognizable frame of a vulnerable person?

• A) Sharing it right away
• B) Changing the frame's color
• C) Asking whether you would want it published if you were in their place, and if needed not publishing it or asking the person
• D) Giving the frame to an advertisement

Answers

1. C — Shooting in a public space is free in most places; the real questions arise when the photo is presented to others.
2. A — In Türkiye this law regulates the protection of personal data.
3. B — The exemption applies on condition that the privacy of private life and personality rights aren't harmed.
4. C — Vulnerable people may not be able to object to their image; the decision is left to the photographer's conscience and care.

Summary card

• Taking and publishing are two separate decisions.
• A recognizable face can count as personal data.
• The artistic and expression exemption is wide, but it protects private life and dignity.
• Before publishing vulnerable people, stop and ask.
• Look at whom you show and how; in a concrete situation consult a lawyer.

Bridge to the next lesson

A frame that won the grand prize in the club's yearly competition causes a debate: it later turns out the photographer took the sky from another photo and removed someone passing by from the frame. Some members say this is editing, others that the competition and the viewer were deceived. Your friend thinks about where the cleanups and color corrections they make in their own photos are legitimate and where they become misleading. When does a photograph lie? The next lesson takes up the limits of manipulation in documentary, news and competition photography.