General Data Protection Regulations (and Bill) – what we think we know so far!

GDPR – Something restrictive this way comes

While the Beast from the East batters our land, it’s a different storm worrying photographers : the new General Data Protection Regulations, or GDPR.

GDPR
“The Beast from the East” is not the only storm affecting businesses.

There are a lot of loops that self-employed photographers, like me, have to jump through. One of those loops, the Data Protection Act, is changing shape and name. The General Data Protection Regulations, or GDPR, come into effect on the 25th May. However, the General Data Protection Bill (which turns it into British law) does not get it’s second reading until 5th March 2018, so it is not sure it will be implemented at the same time.

How will GDPR affect photographers?

I should start by saying that I am not a legal expert and this is how I am interpreting the state of play at the moment after lots of reading and contacting the Information Commissioner’s Office (ICO). There is plenty of other information for small businesses out there about the changes in the law, but not much clear information about photography. So this post is purely about that.

Is my work purely art?

Under the current Data Protection Act exemptions exist for photographers for images taken as art and for journalism.

Speaking with the Information Commissioner’s Office they said, “The GDPR allows member states to introduce exemptions/derogations. These will be set out in the Data Protection Bill – it’s likely there will be a similar exemption for personal data processed for the purposes of “journalism, literature and art” but as the Bill has not yet been approved and adopted by Parliament, we can’t yet confirm what those exemptions will be. ”

Out with the Old

Under the old Data Protection Act 1998, there was definite provision for art and journalism.

32. Journalism, literature and art.

(1)Personal data which are processed only for the special purposes are exempt from any provision to which this subsection relates if—

(a)the processing is undertaken with a view to the publication by any person of any journalistic, literary or artistic material,

(b)the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and

(c)the data controller reasonably believes that, in all the circumstances, compliance with that provision is incompatible with the special purposes.”

In with the new

The proposed GDP Bill is worded differently.

“Journalistic, academic, artistic and literary purposes

24 (1) In this paragraph, “the special purposes” means one or more of the
following—
(a) the purposes of journalism;
(b) academic purposes;
(c) artistic purposes;
(d) literary purposes.

Schedule 2 — Exemptions etc from the GDPR
Part 5 — Exemptions etc based on Article 85(2) for reasons of freedom of expression and information

150
(2) Sub-paragraph (3) applies to the processing of personal data carried out for
the special purposes if—
(a) the processing is being carried out with a view to the publication by
a person of journalistic, academic, artistic or literary material, and
(b) the controller reasonably believes that the publication of the material would be in the public interest.
(3) The listed GDPR provisions do not apply to the extent that the controller reasonably believes that the application of those provisions would be incompatible with the special purposes.”

Am I exempt?

That’s a lot of legalese, but I interpret that as, if produced for purely artistic purposes, photography will continue to be exempt from data protection laws.

So, an amateur street photographer taking candid shots in the street will be exempt from the the Regulations. The arts are free of constraint, according to the EU Charter of Fundamental Rights.

(I should point out that the current government are making noises about removing us from the EU Charter of Fundamental Rights. So things may change in the future. Our current freedoms of expression may change or disappear altogether.)

If I am reading the law correctly, and I reiterate I am not a lawyer, photographs would only be able to be used without the law applying if used for journalistic/academic/artistic or literary purposes.

So, if I took a photograph of you on the street and published it as art, then it would be exempt. I would be carrying out my freedom of expression. But, I do need to limit the use of that photograph to just that purpose. If I were to use your image for advertising, or I sold you copies in return for you letting me use your image, then that becomes data and the GDPR rules come into force.

Carrying out the ICO’s online test, I have to be registered for my work. I would be hard pushed to see any circumstances where a professional photographer would be exempt.

Incoming Tide - The GDPR
The GDPR is going to be bringing a tide of changes to how we handle customer data. Perhaps if we just photograph landscapes and don’t keep any customer data, then maybe we would be exempt. But could we run a successful business with those restrictions?

Commercial Shoots

The exemption is unlikely to hold if you enter into a contract with the subject. Therefore, wedding photographers should ask the couples to make their guests aware of who the photographer is and individuals should have the option of not being photographed. That makes life really difficult for documentary photographers. Permission should certainly be sought before wedding shoots are used for publicity.

A contract does not necessarily mean the exchange of money. Just promising to send a copy of a photograph to someone in return for letting you take their photograph is a contract. Then the photographer should get a model release form signed.

Be extra aware of photographing children. Always seek written parental permission before using a picture, sharing it on Facebook or Instagram, even in private groups.  If you attend a youth event and promis photographs of the children for a club or organisation, then that is entering into a contract. The new regulations are –quite rightly– very strict regarding children’s data.

Are street photographs of people biometric data?

This is a regularly debated topic and the answer from the ICO is no.
“In relation to street portraits of individuals; these will not be ‘biometric’ data.” Even so, I would be cautious about uploading to public sites photographs that contain people’s names or other information that may be sensitive.

Occasional Professionals Beware!

Most professional photographers will be prepared for GDPR. Some won’t.

Those who should worry are all the ‘semi-professional’ or ‘semi-amateur’ photographers who just shoot the occasional event, or sell the odd print. These are often not even registered as self-employed and are not insured. They are unlikely to comply with the current Data Protection Act. The new fine for failing to comply, which includes registration, is jumping up from a few thousand pounds to €10 million.

The ICO have been quite good at giving guidance instead of fines to date, but the new laws are stricter. One complaint from a parent whose child’s photo was shared without permission, or you sending an unsolicited email to a former client without their permission, could start an avalanche of penalties. Will HMRC or DWP look at people investigated by the ICO? Will they jump on those who try making an untaxed income from selling photographs? Will they also be studying the lists of people who are registered with the ICO to see if they are registered as self employed?

Now is a good time to either legitimise your business or step away from it altogether.

For those businesses and individuals who use photographers, searching the ICO database  is a good guide to whether the photographer is a legitimate and trustworthy business.

Reality?

There is no such thing as reality

Happy New Year! A purely human arbitrary concept, chosen in the past by our ancestors, it doesn’t correspond with an annual astronomical event of any importance that dictates when New Year’s Day should be. In reality, it is only 365 and a bit days after the last time we, in the West, set the daily counter to 1. Other cultures choose other dates. Our ancestors could easily have chosen any other day in the year. Perhaps we should wish each other a happy New Day every day instead.

Really! There is no such thing as reality

I really enjoy challenging what we perceive. Our perceptions are not reality, they are all a contrivance of our brains. Interpreted partly from the data sent along the optic nerve, much of what we think we see is actually invented in our minds. We use more stored information to create the world around us than what our eyes detect; what we already know about the world contaminates everything we see. We also perceive the world half a second after events occur.  What we think we see is not reality at all.

Sunrise over the Sea shot with a telephoto lens changes reality
A telephoto lens makes the rising sun appear enormous

Our anatomy and memories trick us too

Furthermore,  our eyes’ construction is limiting. Detecting only a very small part of the electromagnetic spectrum, most light we cannot see. Also, the structure of our eyes are as unique as fingerprints. How you see the world may be quite dissimilar from how I see it.

Like old, fading photographs, memories blur over time too. Suggestions change what we recall and other events intermingle with what we remember. There is no absolute truth in what we remember seeing.

Photographs distort reality

Can we apply this same fluidity to reality when creating a photograph? We do it all of the time, often unintentionally. When viewing pictures, we subject them to the same filtering and corruption by our eyes and brain as when we view the rest of the world. Furthermore, the photograph itself is not reality, just an interpretation of it.

A telephoto lens can make the sun seem huge in a frame. A fifteen-second exposure smooths out water and makes flashing beacons appear to be lit all at the same time. This is not how it appeared to me standing there taking the shot.

15 second exposure of Coquet Island with the smoothed sea. This is not a reality we would perceive.
A fifteen-second exposure. The flashing beacons appear permanently lit and the ripples on the water are smoothed out.

JPEG vs Raw

Your camera’s internal computer processes raw data from its sensor. If it is set to take JPEGs then the processor will be pre-programmed – probably by a technician on the other side of the world – how the picture should look. If you apply a digital filter in camera, the processor alters the data.  Applying differing luminosities to the millions of red, green and blue coloured pixels making up your image, the camera then adjusts them according to whatever filter you choose.

Throwing away the redundant data in a process called compression, the camera records one usable, shareable and widely compatible JPEG file onto the memory card. All modern cameras can produce great results in this way.

Moonrise above Coquet Island lighthouse from Hauxley Beach, Amble, Northumberland/
A path of golden moonlight across the sea

The camera always lies

A talented photographer I know takes amazing photos. Setting to record only JPEGs, her finished images straight from the camera look great, almost every one a wall-hanger. Her work-flow takes me back to my youth, entrusting my rolls of Kodachrome to a local laboratory to develop, process and print. Her methodology emphasises the importance of getting the composition and exposure just right.

Another option is ‘shooting raw’. The camera records the all raw data from the sensor into a file on the memory card without any processing. That gives more versatility. It lets you make the adjustments instead of the camera. Raw file developing, using tools like Lightroom or On1 Photo Raw, is non-destructive; anything you do to the file can be undone. Nothing is thrown away or lost as it is with a compressed JPEG. Akin to creating prints from a film negative, you can produce any number of different-looking JPEGs from that raw file without damaging the original.

Each result is your interpretation of reality. Every one is different. Yet, none of them a true or complete record of the event.

Although more versatile, shooting raw has its disadvantages. File sizes are larger and raw file previews are not universally compatible.

Changing reality: to edit or not to edit

There is a school of thought that a photo should always be untouched and a direct record of what was seen when it was taken. For reportage, I agree; the picture must be an honest representation as possible. News photographers – quite rightly – lose their reputations for editing pictures to deliberately mislead.

In portraiture and art shots, I have no qualms about removing a spot from a face or adding blur to soften wrinkles. In most photography, we are trying to create something aesthetically pleasing. If a lamppost detracts from a landscape I can’t physically remove it as I do litter. Is there anything wrong with deleting it using a computer to make a stronger composition? After all, our brains do it all the time.

When photos are changed…

Editing changes reality
Besides removing a lamppost, I edited this picture to convert it to black and white. We don’t see in black and white and yet, whether you like monochrome or not, converting it doesn’t raise an eyebrow in the same way that other editing does.

For me, creating photographic art is very different from just recording an event. I do my best to remove a distracting object that would otherwise spoil the shot; I’ll pick up litter and put in the bin when making the photo and compose the shot to exclude distractions. In the above photo it was a lamppost that unbalanced the shot. There was no way I could fix it while shooting, so I removed it with digital editing.

It’s art, it doesn’t matter that I have changed it. Saying that, it isn’t something I often do, using the clone or other editing tools; I rather get the image right in camera. But, the above image is far stronger with the lamppost removed. It doesn’t hurt anyone by my removal of it and I am not deceiving anyone by doing so.

I could crop the image above to exclude the lamppost or used a longer lens as I did in the following shot. But, would that loose the feeling of isolation? I think so.

… they become art.

When creating a photograph, unless using a lens of the same focal length and depth of field as our eyes, we step further away from our usual perception of reality. Maybe, that is why we like unusual angles, very short and very long exposures, hyper-real imagery and high-contrast monochrome in our photography. By seeing the world in a new and unusual way that our eyes and brain cannot perceive, it looks new and unusual.

It’s that difference that can make a photograph compelling. It’s what makes it art.

Walking across the pier in Amble Northumberland

 

 

Isn’t there a law against that?

Election Time. Get your camera out!


Earlier this year, a collective groan resounded around me; yet another election. The one silver lining for me is that political activity can offer a super opportunity for photographers.

I’m too young to remember the decade of the protest movement, though I love the music. Great photographers of the sixties, like Benedict Fernandez, made their name with classic images of the demonstrations and rallies that changed the world.

Campaigner for fishermen speaks
On the campaign trail

 

On the March
People are on the march once again. NHS cuts and hospital closures, the increasing wealth gap, loss of social care, opencast mines, homelessness, tax-dodging corporations, standing up for war refugees and social equality inspired many ordinary people demonstrate recently. Despite being passion-fuelled, these protests are usually good-natured, colourful affairs, bringing a wide mix of people together in a carnival atmosphere. Protesters want you to see them standing up for what they believe in. They expect and welcome photographs. They are a street photographer’s dream.

Protest march,
Protest march, undeterred by the rain

 

Be aware if you shoot overseas
Britain doesn’t have the same overly-strict privacy laws as France. It seems incredible to me that the homeland of both Robert Doisneau and Henri Cartier-Bresson introduced legislation that killed street photography there. Even if it is not a legal requirement, asking for (or even paying for) permission to take someone’s portrait is something to consider. Do check local laws and customs before travelling overseas with your camera.

Asking for permission to take someone's photo can be essential in some countries.
Young Maasai

 

Street Photography in The UK
In the UK, if you see an interesting face on the street, there is nothing stopping you from capturing it. That does not equate to you stalking and harassing people with your camera, which will get you into trouble.

It’s not always possible, but I try to have polite interactions with those I photograph on the street. I then send them copies of their image. Especially so for the street performers I photograph, I also give them permission to use my pictures as a thank-you for being entertained.

Railway Workers


Can I photograph that building?
Architectural photography is another popular genre for those who take to the streets with their cameras. Security guards may challenge you, but there is nothing in UK law they can do to stop you shooting images from the street, though the police can if you are causing an obstruction.

There are restrictions in Britain. You can be told not to photograph from within privately owned property, including shopping centres. Do so against the wishes of the owner and you are then committing trespass. You can be asked, or even forced if you refuse, to leave.  In England, there is no right to roam. You don’t have the right to enter private land, such as school grounds or farmers’ fields. Doing so and trampling crops or breaking down fences may be criminal damage.

Architectural photography
Shooting buildings from the outside from public land is permitted in the UK

Photographing members of the armed forces, intelligence services and police officers with the intent of preparing an act of terrorism will land you in prison. Poking your lens through the fence of a military base, a dockyard, a factory or the Prime Minister’s private house can end you in hot water too.

There are other common sense limitations, too many for me to fit into the confines of this article, but easily found on internet searches.

Express your politics
Valuing my human right of political expression, I turned out to vote and hope you did too, whichever party you support. One thing I didn’t take with me was my camera. Photography is not allowed in the polling station.

On a protest, it’s a different matter.

Squirrel at an Environmental Protest

 

A Point of View

Masts, Stays, Contrails and Clouds

Photography taught me to look at the world in a different way and think about what I see. It taught me to concentrate on the details and look for similarities and juxtaposed shape and form.

Boat bow
Bow and Cirrus

I learnt to appreciate movement and stillness.

Mast and Birds

What might seem commonplace to me can be unusual to someone else. An everyday view can become unique by choosing a new angle.

Fishing boat "Harvest Dawn" enters the Warkworth Harbour.
Harvest Dawn

All photos have a tale to tell. The wear and tear of the weather and the accidental piece of seaweed tangled around a mooring rope tell a story.

Bladderwrack entangled in the bow warp
Baltic and Bladderwrack

For me, a photograph tells a story by either a making a statement or, better still, by asking a question.

Harbour

Including people in the  shot helps to create a question. Who is it? Why are they there? What are they looking at? What are they thinking?

Gone Fishing

Sometimes the story may be obvious,

Lone Cyclist

and sometimes surreal.

Ape on a bin
Ape

After twelve years living in the same town and there is always something new to see, always new photographs to shoot.

Street Life

The art of photography is wide-ranging, appealing to so many different tastes. Still life is the staple for some while capturing birds interacting with their environment is the aim for others. For me, the timelessness of black and white is king, while others yearn for colour.  Many prefer to carefully compose a landscape using the unadulterated natural lines of hills, water and trees. I think a person, animal or bird changes a scene to something far more dynamic.

The Walker

I think the same applies with architecture. Buildings, bridges, streets were put there for people and adding people into that environment changes the entire feel of the image. These are, of course, my subjective tastes and not everyone will agree.

The psychology, techniques and even the terminology of photography are similar to those of hunting. Heading out into the field, carefully aiming, breathing out and waiting for that split second to get that perfect shot, then gently squeezing the trigger could easily describe either activity. Photography is without the slaughter.

It’s not without its controversies though. I’ve always been fascinated with street photography. There was a trend a while ago for photographers to force their camera into faces, capturing unflattering views of people’s features close up. These did the reputation of photographers no good at all. Fortunately, times have changed again and projects like Brandon Stanton’s “Humans of New York” and Max Gor’s “Raw Streets” work in London have a much more deferential approach to photographing strangers. Both Stanton and Gor’s excellent and respectful work are often on-location portraits and usually much less about the interaction with the urban setting, although Gor does some splendid candid work too.

In style, they are quite different from the great Henri Cartier-Bresson who stepped back and documented people interacting with their world.  The documentary, candid style that he pioneered is what really appeals to me.

When he said your first 10,000 photos are your worst, Cartier-Bresson was speaking in a very different time. His quest of trying to capture what he called the ‘decisive moment’ has been lost, swamped by the scatter-gun photography of multiple exposures and the trillion snaps a year that are vomited out by those seeking to record and share their every waking moment. If he lived today, I wonder if he would have said your first 100,000 photos are your worse. Photography for many has become more akin to dropping a cluster-bomb rather than hunting for that shot.

Saying that, there is  nothing wrong with shooting multiple exposures. For wildlife and sports photography it is a boon. My next camera, the Olympus OMD EM1 mk ii, has an unbeatable 60 frames per second frame rate. But, that is not why I am buying it. It’s the image quality, versatility and portability that enable me to get the images I love to take. I can think of no camera better to have on a street assignment or for shooting puffin on the Farne Islands.

Of course, if you head out into the street, recording what you see, you will capture moments in time that are uncomfortable, images that challenges the viewer to ask questions about the world we live in and even make judgements about the rights and wrongs of publishing some pictures.