How public is too public?

I encountered a situation this week that has not been brought up to me in my ten years of social media management for businesses. In all of my communications roles, sharing images from different events has been expected – especially when we are also a sponsor of the event. In this particular situation I was at a minor hockey game. It was atom level, with kids under 11 playing.

The reason I was there was specifically to take promotional photography that would serve as an ad for my employer’s minor hockey sponsorship and fundraising opportunities. The coach and parents were aware of this. During this rather informal photoshoot I snapped a picture with my phone of the rink board advertisement we have featured, as well as some of the players, and tweeted it with the following caption: “We’re proud to support future hockey superstars in communities across the #Prairies!”1

I thought nothing of this until it was brought up to me later that perhaps it was not appropriate to tweet an image of children without their parent’s explicit, written permission for it to be shared on social media. I understood where they were coming from but I couldn’t help but think of all the reasons why this situation was no different than tweeting an image from a dinner, or conference or trade show that have people in them that perhaps wouldn’t have agreed to be. These are all types of events we’ve featured images from in the past.

In today’s world, with a camera on every cell phone, the risk of being photographed in a public place is high and the right to take a photograph in a public place exists. There’s no reasonable expectation of privacy in a hockey arena open to the public. Anyone could have come in off the street and seen what was shown in the photo – kids playing hockey, nearly unrecognizable through their face masks.

I started thinking that perhaps it was our position as a business that would make this situation different but was shocked to discover that there isn’t really legislation that pertains specifically to the use of pictures taken in public. “Photography is mentioned in very few Canadian laws,”2 according to the website Ambient Light and where I live, in Alberta, there is no provincial legislation pertaining to the use of photography.

The only situations where this changes is when that reasonable expectation of privacy becomes criminal voyeurism (i.e. public washrooms are public, but you can’t take pictures in them.) There’s nothing that exists to say how businesses can use public photos to promote themselves; not that I could find anyway. I would not have used a public photo to sell a product, but promoting our community support could be seen by some as selling ourselves. Likewise, a professional photographer can sell images taken in public places without necessarily having signed waivers.

This has left me with a lot of questions but one stands above the rest – should there be an exception in this situation because of the age of those in the image, or is being in a public place and not identifiable in the photo, enough to satisfy that what a member of the public can see with their eyes is fair use?


1 Proven Seed. (2017, December 09). We’re proud to support future hockey superstars in communities across the #Prairies! pic.twitter.com/5M0HYxux1n. Retrieved December 11, 2017, from https://twitter.com/ProvenSeed/status/939630832892960769
2 Photography Laws. (n.d.). Retrieved December 11, 2017, from https://ambientlight.ca/laws/


 

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How public is too public? Finding the balance between public photography and a right to privacy. Read more: http://bit.ly/2AgapyF

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Photographers and the right to privacy in public. Should commercial photography be limited to studios and staged shoots or should photographers have the right to shoot images in public for use on social media? Weigh in on the issue: http://bit.ly/2AgapyF

6 thoughts on “How public is too public?

  1. Hi Julia,

    I encourage you to read my blog #2 Privacy Trumps Freedom of Speech. I am one of those people that thinks privacy trumps free speech. Yes there is limited legislation regarding the privacy rights of the subjects of images, but there are clear laws regarding ownership of an image. Which means you can make money off an image you create. Your rights as a creator are protected why shouldn’t the rights of the subject be protected?

    Rob.

  2. Life these days is fraught with opportunities to take pictures given that everyone is carrying a phone/camera with them all the time. How do we deal with this without hog-tying everyone? There was an interesting case in Ottawa recently where a female jogger sued a developer when she realized that her image had been used in one of their ads without her permission. (http://www.cbc.ca/news/canada/ottawa/jogger-filmed-condo-ad-privacy-breach-1.4421938) She won because they had used her image to make money without her consent – and I think that is the distinction here. Further to Rob’s point, I think the ownership of the image was hers to grant. I think in your case, given that when signing up their kids everyone had to agree (or not) to having their pictures taken for promotional reasons, they had a reasonable expectation of having their picture taken.
    Natalie

  3. I know that if I am somewhere public and someone is taking a selfie or just a regular pic and I could be featured in that picture it makes me really mad, because I don’t want to be featured in in someone’s pic who I don’t even know. So sorry, I get this right to privacy thing. I think too that where there are children involved, because of their age and inability to protect themselves one does have to be sensitive to featuring them in public photos without parental consent. At my company we do get parental permission via a signed documents should we be using a child’s picture for a publicity shot – in business and with all the possibility liability issues better be safe than sorry!

    • Oh I absolutely have signed waivers for the promotional photos – I was there in the capacity as a photographer, not just a member of the public. The question became that does “marketing activities” as outlined in the waiver also apply to social media, or does that have to be called out specifically?

  4. Hi Julia:
    I have volunteered for a minor sports organization and because there were kids under the age of 18, waivers are suppose to be signed, it not only protects the kids, the organization that you are sponsoring but it also protects you (photographer). The way I am reading this is that your company is sponsoring an event therefore, the organization would own the rights due to it being their fundraising event. At any cost, if someone is attending your event and it is advertised that photos will be taken, that said someone had consented the moment they stepped foot in that fundraising event auditorium.

    This is a a fair bit of conflicting arguments when it comes to this topic. However, this is a conversation that should be discussed at a manager’s level and should be up to a business,corporation or organization to search out the answer to this topic.

    I applaud you for choosing a topic that can be up for debate!

  5. Hi Julia –

    I believe we haven’t even scratched the surface in privacy legislation. I don’t believe photographers have the right to shoot commercial photography in public places, especially relating to minors. How does the photographer know the background of the children who may inadvertently appear in the photo? There could be a child in protective custody who can’t be photographed as a matter of safety. Moving forward, I think legislation needs to be set out to clarify privacy as it related to public spaces given the advent of social media and platforms to share these images.

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