This is not legal advice it merely sums up my findings thus far:
In my limited research (google & photography forums rather than formal legal counsel) around the question of privacy laws (not copyright or ownership issues) in ‘street photography’ it seems that Canada is more conservative than the USA, UK, SA or Australia. The classic photography genre is not alive & well here.
The question arose to find out if it is ok to sell in a gallery, or self publish a portfolio book, images made in public places where a person is recognizable, is not aware of being in the picture, and has not given consent (written or implied). The person may not necessarily be the main feature, large in the frame, as one would expect in a portrait, but nor are they merely incidental passers-by either. Their presence fulfills the artistic intent of the image.
In 2010 the Quebec supreme court handed down a ruling which only makes it ok to make images of people on the street if it is considered newsworthy. See the link below for a description of the scenario.
Ben Evans on photo.net posted:
“Under Canadian law, generally speaking, commercial, editorial and artistic are the same thing. It doesn't matter if a photo is published in a newspaper or hung in a gallery and it doesn't matter whether or not the photographer uses the image for monetary profit.
It is legal to photograph people who are in a public place without their consent. It is legal to publish their photo without obtaining their consent if the photo covers a newsworthy event.
However, it is NOT legal to publish (in the media, a gallery display, a personal blog), without consent, the image of a recognizable person who is the main subject of the image if the image was not taken to record a newsworthy event.
Example: You take a photo of a clown who is entertaining children in a public park. The clown is the obvious main subject of the photo but a group of children who are being amused is visible in the photo. You can publish or display (commercially, artistically or editorally) the group photo without the consent of the clown or the children (i. e., their parent). If you crop the photo so that only the clown is recognizable, no consent is required because he was performing publicly and the event is " newsworthy" and he wanted to be seen. Since the children are incidental to the photo, you CANNOT publish (or display in a gallery) without consent, a cropped photo that is essentially a portrait of one or several of them.
A few years ago, the Supreme Court of Canada handed down an important decision in this area. A photographer was taking pictures of a public demonstration. He noticed a young women sitting in a nearby doorway. His portrait of the woman was later published in a magazine. She sued and won because she was not depicted as the main subject of a newsworthy event or even as a recognizable onlooker of that event but as a private individual present in or observable from a public place.
The following link (in French) covers the essentials of privacy rights that affect photographers in Canada: http://www.francisvachon.com/blog/le-droit-a-l
He goes on further to say:
“The linked article is specifically about Québec but much of the information is applicable to all provinces. The author is an experienced news photographer.
Here's a link to the English version of the related Supreme Court decision: http://csc.lexum.org/en/1998/1998scr1-591/1998scr1-591.html
"The respondent brought an action in civil liability against the appellants, a photographer and the publisher of a magazine, for taking and publishing, in a magazine dedicated to the arts, a photograph showing the respondent, then aged 17, sitting on the steps of a building. The photograph, which was taken in a public place, was published without the respondent’s consent. The trial judge recognized that the unauthorized publication of the photograph constituted a fault and ordered the appellants to pay $2,000 jointly and severally. The majority of the Court of Appeal affirmed this decision."
Then the Supreme Court went on to uphold th lower courts' decisions (5:2), based on the Québec charter of rights, for the following reasons:
"In this case, the appellants are liable a priori, since the photograph was published when the respondent was identifiable. The artistic expression of the photograph cannot justify the infringement of the right to privacy it entails. An artist’s right to publish his or her work is not absolute and cannot include the right to infringe, without any justification, a fundamental right of the subject whose image appears in the work. It has not been shown that the public’s interest in seeing this photograph is predominant. In these circumstances, the respondent’s right to protection of her image is more important than the appellants’ right to publish the photograph of the respondent without first obtaining her permission."
Since no similar case in another province has reached the Supreme Court, whether the ruling applies elsewhere is not clear. However, one of the justices mentions in passing section 8 of the federal charter (unreasonable search and seizure). He raises the possibility of making an argument that would make publishing (but not taking) a photo of a person without permission tantamount to an illegal seizure since a person's right to privacy and "inviolability" (section 1 fundamental right) applies to some extent even in public places.
The woman was awarded damages in the amount of $2,000. Ironically, anyone can now publish the picture because it was received in evidence before the Supreme Court and by law is now in the public domain.
If I was in another province, I would play it safe and assume the Québec-based ruling applies since that is the most likely outcome when the Supreme Court finally rules under the federal Charter or the laws of other provinces.
Here' a link to the law in Ontario with some refs to other provinces: http://ambientlight.ca/laws/overview/what-can-i-publish/
Even in the absence of a specific privacy law in a particular jurisdiction, anyone who thinks they have been physically, emotionally or financially harmed or their reputation has been harmed can sue you. Even if you prevail in Court, the experience could cost you a lot of money
The last sentence is the bottom line:
Even in the absence of a specific privacy law in a particular jurisdiction, anyone who thinks they have been physically, emotionally or financially harmed or their reputation has been harmed can sue you.
Here is a separate link to a privacy law blog but it doesn’t throw much more light on the subject except to suggest offering subjects the right of veto. That I would cease & desist if necessary- http://blog.privacylawyer.ca/2010/04/some-thoughts-on-street-photography.html
And here is a link to a downloadable brochure outlining photographers rights in Ontario -http://ambientlight.ca/laws/printable-laws-pamphlet/
So what is the answer to my original question whether I can display, sell, publish my ‘street photos’? There isn’t a clear cut definitive answer. It’s open to interpretation. In general it is not illegal to make the photos, but it is to publish them, if the subject feels harmed. Mostly people will probably not mind if they don’t think I’m up to using them in a negative way. Hopefully the seriousness of my work and it’s artistic integrity will be sufficient to allay fears and make them willing participants in my art projects.
There are so many great photographers in the history of ‘street photography’ that would not have been able to function & produce their work under these circumstances – Henri Cartier-Bresson, Andre Kertesz, Robert Frank, Garry Winogrand, Helen Levitt, William Klein, and many, many others.
What to do…….mmmmmm. If anyone has more to share please let me know.