Individual privacy rights are an important point of law, but so is your freedom to take a picture. The two often collide, so photographers and subjects should know their rights.
You can take photos of almost anything or anyone in a public space, but what you do with them raises larger questions of privacy, compensation, and more.
Most simply, if you’re taking photos for your own albums and not publishing or selling them, you can snap just about anything out in public. It’s more complicated when you take photos of people though.
Firstly, anyone in your photo should be out in public as well. If you’re in a public space but your telephoto lens can see into someone’s bathroom window, you’re violating their reasonable expectation of privacy.
People don’t have that same reasonable expectation when they’re out in public. But it doesn’t mean they forfeit any right to privacy.
Generally, you don’t need someone’s permission just to take a photo, but you will need their consent if you’re planning to sell or distribute it anywhere.
In 1998, the Supreme Court of Canada made a landmark decision in a case where a Quebec woman sued a magazine for publishing a photo of her taken in a public spot without her permission.
The court agreed the magazine violated her privacy and saying, “the fault lay not in the taking of the photograph but in its publication . . . since the respondent was in a public place when the photograph was taken, that act alone could not be considered an invasion of her privacy. However, the unauthorized publication of the photograph constituted an infringement of her anonymity, which is an essential element of the right to privacy.”
She was awarded only $2,000, since the photo’s publication didn’t injure her in any way. But the ruling established some important considerations on public photography and privacy rights.
Another important conclusion from that case is that you don’t need consent from bystanders, crowds, or people “incidental” to the photo.
If you’re taking a photo of at a hockey game or of the CN Tower for example, you don’t have to try cropping out anyone else who might be in the frame. The court considers them “an anonymous element of the scenery, even if it is technically possible to identify individuals.” The important concern is that they aren’t the focus of the picture.
But if a person is the subject of your photo, they’re prominent and identifiable, and you plan to publish, distribute, or sell that shot, play it safe and get their consent.