First of all let's make it clear that I simply adore street photography - so I might be bit biased in this article. I just love taking photos through the every day moments - composing shots from everyday life with the everday emotions. I also like the adrenaline which is part and parcel of the sneaking a shot without getting noticed, always at the same time being very prudent.
There has always been a debate on whether it is permissible to use photos taken in the street and how these can be used. Recently on the public group of the Malta photographic society Samuel asked this question which we probably have all asked at some point in time.
I am hereby focusing my discussion on the Maltese legislation, guidelines and interpretations I have found, and I also added my considerations on the topic. These are not legally binding, but are just my idea on the topic.
Getting a consent
Through an information publication the commissioner of Data and information protection identifies the best and safest practices for street photography. In summary the guide recommends that ' when the photographer intends to publish or commercially use a photograph clearly identifying a data subject, the provisions of article 9(a) of the Data Protection Act must be satisfied. ' i.e. there is a consent from the person being photographed. The consent can be in verbal or other manner, even though the written consent would be best. This is obviously the safest position, however I do note that this is a strong suggestion made by the office and not a requirement.
Different considerations
The guide also indicates that 'each case should be evaluated on its own merits' and that the following are taken in consideration:
'whether the photo was taken in a public place;
whether the individual is a public person;
whether the publication was in the public interest; and
whether the photograph was taken during a public event'
Without consent - blurring of faces
The document also agrees that sometimes it is not possible to get consent: If, due to the restricted circumstances of the shot, the photographer is not a realistic position to obtain the consent and would still like to use the photograph for purposes falling outside the household exemption, this Office recommends the blurring of the face as a possible approach to render the individual unidentifiable.
Again the blurring of the faces is a recommendation and not strictly a requirement. At the end of the day we do know that blurring the face my make us lose expressions and artistic value in a photo.
My approach
In my evaluation on whether to publish a shot or not (when i do not have explicit consent) I do a small risk assessment .... answering the following questions:
'did the subject have a reasonable expectation of privacy when this was shot?'
can the publication of this shot create unpleasant consequences for the individual?
is the subject a minor?
If any of the answers to the above is a yes, then I would not publish the shot.
Conclusion and examples:
Therefore, in my opinion and in consideration of all of the above points, it would be reasonable to take and publish a photo taken in a public event, from a public place of identifiable people doing something innocuous, even without their consent.
Public place (shopping mall), innocuous activity, not recognizable
Public place (street) taken from street, innocuous activity, barely recognizable
However it would not be adequate to shoot something which intends to be private, or which involves minors without appropriate consent. The intention of the people photographed (did he want to go public?), in my understanding, is key to the shot being publishable or otherwise.
Also the consideration of the use of the photo needs to be done - if something is going to be used for commercial purposes then consent will always be necessary. If however I am exposing the shot to a small audience for artistic reasons, then I am more willing to take a risk - but nevertheless there is always a small risk.