More on Consent

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A little while ago, there was a discussion on Twitter that centered on a photograph someone had taken of a young woman on the New York subway. The woman, a mother of two young children, was wearing a short dress, and she was clearly struggling to deal with her two very active children. According to his own testimony, the male photographer had sat across from the family and taken his picture on the sly. I’m not going to link to the picture in question or show it here. I am a member of the camp who thinks the photograph should not have been taken (for a number of reasons).

There obviously is a topic here that extends beyond this particular case in question. Last year, I wrote an article about consent that focused on what I see as photographers’ obligations. It might be worthwhile, though, to approach the subject matter from the other side: from the vantage point of those find themselves on the other side of the camera.

There was a discussion on Twitter about the photograph in question that resulted in a fairly predictable outcome: proponents of so-called street photography, but also others, pointed out that the First Amendment covered what they do. If, in other words, free speech is guaranteed then there is no way for anyone to prohibit the taking of a photograph (or the particular photograph in question). Second, it was pointed out that in the United States, courts have ruled that there is no expectation of privacy in a public space.

Both of these justifications are legal ones. However, when people speak of consent, they don’t think of that as only a legal entity. There also is an ethical component to it. Just because you have the legal right to do something does not mean that you actually should do it, in particular if it causes offense to other people.

I always feel that people bring up the First Amendment not to have an actual discussion but instead to shut it down. Who, after all, would want to be on the side of people who want to restrict free speech?

However, the legal argument is not as absolute as you might imagine. If you associate the taking of a photograph with the act of speech, then no photograph or no act of taking a photograph could become illegal. But that’s not the case. Possibly the most extreme example is provided by child pornography. According to the US Department of Justice, “Images of child pornography are not protected under First Amendment rights, and are illegal contraband under federal law.” I don’t think anyone would want to start an argument about this.

In a similar fashion, there are other types of photography that are expressly prohibited. For example, for very good reasons a growing number of states in the US (including New York State) and countries all over the world have made so-called upskirting illegal (here‘s a good article about it).

There is a second point concerning laws: courts only apply existing laws. If US laws state that people can have no expectation of privacy in public, that might not reflect how people actually feel about it today. It is possible that in the future legislation will be passed that defines people’s privacy more strictly. This is what happened in Europe, where the EU created the General Data Protection Regulation (GDPR; in part as a consequence of what the EU perceived as excessive behaviour by the likes of Facebook).

In the GDPR, data include photography as well — which makes perfect sense, since the vast bulk of photography is digital. As you can imagine, this has created a lot of problems for photographers.

The question of consent might extend beyond the moment when a picture was taken, and it can become tricky as outlined in this article by Erin MacLeod: should you publish photographs of your ex-wife if she does not giver her permission? The obvious answer is: no, but as you can imagine — photoland being photoland — the pictures were published in a book.

But as Aileen Smith, who was married to W. Eugene Smith, has demonstrated, another world is possible. One of the most iconic photographs in the history of photography, a picture of a mother bathing her severely disabled child, has now been essentially withdrawn from further circulation: “Generally, the copyright of a photograph belongs to the person who took it,” Smith is quoted in this article, “but the model [subject] also has rights and I feel that it is important to respect other people’s rights and feelings.” (my emphasis)

In that Twitter discussion I mentioned above, there was a very interesting and telling aspect: last time I checked, every woman who commented on the picture saw it as problematic. All of them immediately sided with the young woman that had been photographed. There also were a lot of men who joined them. In contrast, the defenders of the picture and the practice that led to it were all male.

What I ended up wondering was the following: if you’re engaged in some practice that a growing number of people see as problematic — if, in other words, they don’t want to be photographed without their consent — how can you justify doing it anyway? As we saw above, you can invoke your legal rights. But that only covers your legal base. You’re still left with being on the wrong side of the ethical aspect of it all.

In particular, if you’re some guy with a camera, why would you photograph a young woman who is wearing a short dress and is struggling with her two young children without her knowing it, without her consenting to it? I just don’t get it. That just feels to wrong to me, regardless of the fact that it happened in a public space.

The fact that the space was public doesn’t make this all any less intrusive. The public space, after all, does not mean the same thing for men and women. Here’s the UN: “Sexual harassment and other forms of sexual violence in public spaces, both in urban and rural settings, are an everyday occurrence for women and girls in every country around the world. Women and girls experience and fear different forms of sexual violence in public spaces, from unwelcome sexual remarks and gestures, to rape and femicide. It happens on streets, in and around public transportation, schools, workplaces, public toilets, water and food distribution sites, and parks.”

For you, as a male photographer, it might just be a cool photograph. However, for your subject, the young woman in a short dress, it might just be another one of those small humiliations to live with. You might tell yourself “oh, she didn’t notice because she was busy with her two kids”. But how would you know? As far as I know, parents of toddlers are hyperaware of their surrounding because toddlers tend to be so unpredictable. And even if she didn’t notice — does that make it any better?

One of the common justifications for street photography is its own history. There are all those practitioners in the past who did it (the vast majority of them men). That might be the case. But I personally don’t see how this justifies engaging in it today without any consideration for what people think is acceptable behaviour. If people don’t want to be photographed without their consent, it’s an odd justifications to say “but people didn’t mind in the past,” isn’t it? Societies change over time. Certain things either go out of fashion or usually for very good reasons aren’t acceptable any longer. For example, many parents do not want their children to be photographed by strangers.

We also have to remember that we’re talking about photographs here, photographs done for the purpose of art. We’re not talking about journalism or anything that has a very different function and value. Typically, when I make my case that photographers ought to get consent, the whataboutism of photojournalism pops up (“but what about photojournalists?”). This sounds like a good point, but it actually isn’t.

Even though the world of journalism is different than the world of art, it has its set of parameters for which pictures it considers appropriate. There are certain types of pictures that you won’t find in newspaper or on news websites, typically out of consideration for the dignity of those portrayed and their next of kin (this might include victims of terror attacks, soldiers who died in war, etc.).

There have been frequent arguments over the validity of whether or not certain pictures should be shown in the news.  What I find striking is that such arguments typically contain a lot more nuance and consideration for people’s feelings than when art photographers talk about street photographs. There, the first thing you hear is: First Amendment rights. Invoking one’s the First Amendment rights should be the very last point made — after people’s thoughts and feelings have been taken into careful consideration first.

Furthermore, if as an art photographer there’s a picture you can’t take — for whatever reason — that’s not the end of the world. It’s just a picture. If anything, you’re presented with a challenge. The challenge is not to figure out how to take it anyway. Instead, it’s how to take an equivalent that avoids the underlying problems.

What this all comes down to is the following: photographers (me included) like to go out into the world, to create pictures from what is being presented to them. Those pictures then not only reflect the world but create a dialogue with non-photographers: here is something that can help us come to an enriched understanding of what it means to be a human being.

There’s no way you can and will have this form of dialogue if you go out into the world and ignore how all those other people — your possible future viewers — feel about how you can treat them with your camera.

In the end, it might all come down to one basic thing: respect. Have respect for how other people feel. If as an artist you want to be treated with respect, then you will have to do the same with other people — including those that happen to be in front of your camera.

If you’ve enjoyed this article, you might enjoy my Patreon: in-depth essays about and videos of books that cover my own personal response as much as the books’ individual aspects.

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