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
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
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
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.
Aubry v. Editions Vice-Versa Inc.