BACKGROUND
Photography Is Not A Crime or PINAC as it is sometimes referred to, is a term that if frequently used when referring to the right of the general public to photograph anything in the public domain, including police and government buildings and personnel.
In the US, this has led to the infamous First Amendment Audits. Whether these “audits” are really to test constitutional rights is questionable. The act of recording in public, including police and other government officials, is legal. The subsequent actions of individuals after being approached by the police is where cause for concern lies.
It seems like of these “audits” are being used as a mechanism to entice and provoke police, to the extent of getting abused, detained and/or arrested, which inevitably leads to lawsuits and subsequent settlements. And yes, it does seem like a lot of police officers and security guards do not understand the laws or constitutional rights afforded to individuals, in terms of free speech, freedom of the press, etc.
In this blog post, I will try to present what the laws says and how they can be interpreted, specifically in terms of privacy and trespass, as applicable to South Africa. The moral and ethical issues related to public photography is best left to the reader to decide on.
SA PHOTOGRAPHY LAWS
You have the right to take photos of anyone or anything in a public area or that be can be seen from a public area.
When you enter a public area, you essentially waive your right to privacy. Since we are a democracy, anything in public is a matter of public record. Simple enough? Not quite!
There are a few caveats to this….and that’s where things become tricky! You cannot photograph anyone or anything in public where there is a reasonable expectation of privacy. And this is where some degree of interpretation is necessary. In some cases, it may be clear to most people as to what is considered to be off-limits, e.g. changing rooms, rest rooms, medical facilities, etc.
It is also important to note that the law specifically states public places only, but there is a general understanding that it includes private properly which is openly accessible to the public. If there isn’t a specific sign prohibiting photography, it is generally meant to indicate that it is acceptable.
In SA, shopping malls are privately owned, but openly available to the public. However, photography is at the discretion of the mall management, and this is usually indicated with no photography signs posted. There are also many places that may also appear public, but it is in fact privately owned, such as the V&A Waterfront are Melrose Arch (I never knew this until now).
Photography isn’t specifically prohibited in such areas, but if you were taking a photo and subsequently approached by staff, you may be asked to stop taking further photos, which you should do. If you persist, then you may be asked to leave the premises and you are obliged to comply or you risk trespassing.
Taking a photo is legal, but trespassing is not! It is also important to note that no private person or company may detain you, confiscate equipment or attempt to delete your photos. Asking you to stop taking photos and/or to leave the premises is about all the legal powers available to private property owners.
In general, you are allowed to take photographs of private property from an area which is deemed public property, unless there is a reasonable expectation of privacy. Taking a photograph of a private hotel from the street is legal. Taking a photograph through someone’s hotel room window or of someone sunbathing on a balcony is probably not. I say probably because circumstances like this could be debatable. If you leave your hotel room curtains or blinds open or if you are sunbathing on the balcony, is there any reasonable expectation of privacy??? There are a few grey areas in the interpretation of the law. But if in doubt, it would be best to stay on the cautious side.
For public photography involving people, the situation and outcomes differ significantly. Some people may not even pay attention to you or care about you taking photos, or you may be lucky or even get a smile for your photo, whilst others may be a bit skeptical of your intentions.
Don’t hide your photographic equipment. Shoot out in the open!
Some may even be angry or confrontational about it. The law states that you are not obliged to ask permission, but if you are unsure or the situation allows for it, asking for people’s permission may be the wise thing to do. If you are taking photos in public, do it openly and people won’t assume you have ulterior motives. Although, I would avoid taking pictures of children under any circumstances……that always leads to trouble!
And if people in public specifically ask you not to take photos of them?
In my opinion, you could stop if you wanted to or even if just out of respect for someone’s opinion, but once again, you are under no legal obligation to stop even if asked to do so. Can their request for you to stop taking photos of them be deemed reasonable expectation of privacy? I don’t think so and I am of the opinion that there are no legal grounds for you to comply. Imagine if people asked journalists not to take photos of them and they had to comply? What happens to freedom of the press and in direct contradiction to the Constitution.
Capture the moment, but always be polite and respectful!
Private events held in public places, such as concerts, shows, for which you pay a fee to enter are subject to the specific rules and regulations of the organisers, and you are obliged to comply. This could be due to copyright and/or intellectual property. So no, you can’t photograph a concert that you paid to enter just because it is being held in a public place.
What about National Key Points and/or sensitive installations? With the Nkandla debacle, we were led to believe it is illegal, but that was quickly dismissed. In general, it seems legal to take photos of National Key Points, except if the photo is used for illegal purposes? How one goes about proving or disproving that is beyond my comprehension. In any case, the National Key Points Act is currently in the process of being replaced with the Critical Infrastructure Bill, so let’s wait to see what that eventually says.
And before you ask, the use of drones (private or commercial) is subject to SA Civilian Authority regulations for Remotely Piloted Aircraft Systems (RPAS), so you cannot fly a drone from or in a public place and use that as an argument to justify aerial photography/videography. There are limitations on flying drones, so please educate yourself prior on the rules and regulations.
KNOW AND RIGHTS…..USE YOUR DISCRETION
In today’s technologically advanced society, where everyone has access to high quality cameras and smartphones and can take photos of virtually anything, knowing your rights is vitally important. At some point, you may very well be confronted by people, either just out of curiosity or sometimes by people who are opposed to having their picture taken.
Here are some guidelines to deal with situations if the need ever arises:
- I have broken no law by making a photograph of you
- I am under no obligation to explain to you what I am doing or why I am doing it
- I am under no obligation to show you the photograph I have made
- I am under no obligation to identify myself to you
- The photograph I have made is legally my property
- Although I may not do it, I am fully within my rights to continue making photographs of you while you are in conversation with me
- If you attempt to physically restrain me from doing so by touching my person, you are breaking the law. If you do not wish to be photographed the only legal way you can prevent it is to move away from the scene
- If you threaten me physically you are breaking the law
As much as we acknowledge terrorism and the threats around us and the need for heightened security, we cannot allow our constitutional rights to be infringed upon. The mere act of taking a photo is not a crime, and can never be the basis for illegal detainment or arrest. Education for the public as well as law enforcement is vital.
It is therefore vitally important that you know your rights, but please use your own judgement! Standing your ground is good and protecting your rights is perfectly acceptable, but avoiding a night in jail when you could have just been courteous might have been a better decision? There will always be opportunities to take more pictures!
Disclaimer – while to the best of my knowledge the information regarding the law as it applies to photography in South Africa is correct at the time of publication, I am not a lawyer. This article is my personal interpretation of the law written as a lay-person and should in no way be construed as legal advice. I accept no responsibility for any damage that arises from your use of the information published here.
In America, the 1st Amendment audit that you’ve cited was pretty much a hands down victory for the photographer. It was only because some of our police and politicians were tired of being exposed as corrupt. I’m allowed to photograph pretty much anything that can be seen from the street. However, I also have to think about public perception. For example, a young mother caring for a child in a public park might make for a great photo and because it’s in public I would have a right to make and publish the photos. But if she becomes offended then it’s better to delete the photos and comply with her wishes in order to keep a clean public image as a trustworthy person . My rule of thumb is to ask permission if that person might recognize themselves in the picture regardless of my legal rights as a photographer. For me it’s better to have the public’s trust.
Sure, photography is not a crime. Even if we are in public places, we still have the right to choose if we want to be photographed or not. Furthermore, being in public doesn’t necessarily mean that we are public.
We are allowed to indulge in our privacy and anonymity. Photographing for journalistic purposes is a necessity.
Very informative! I always feel like I’m breaking the law by taking photos with someone else in them. But now I know better! Thanks for posting this!