Anne Marsh is professorial research fellow at the Victorian College of the Arts, University of Melbourne.

Melissa Miles is an Australian Research Council Future Fellow and photography historian.

 Daniel Palmer is associate dean of research and innovation in the School of Art at RMIT University. 

The Culture of Photography in Public Space

By Anne Marsh, Melissa Miles, Daniel Palmer

Intellect Ltd

Copyright © 2015 Intellect Ltd
All rights reserved.
ISBN: 9781-78320-459-5

Contents

Foreword Alfredo Cramerotti, 6,
Acknowledgements, 8,
Introduction Melissa Miles, 9,
Chapter 1 Standing on Shifting Ground: Privacy and Photography in Public Melissa Miles, 22,
Chapter 2 Tilt Simon Terrill, 44,
Chapter 3 "No Credible Photographic Interest": Photography Restrictions and Surveillance in a Time of Terror Daniel Palmer and Jessica Whyte, 56,
Chapter 4 Street View/interface Michael Wolf, 74,
Chapter 5 Bill Henson and the Polemics of the Nude Child in Photography Alexandra Heller-Nicholas and Anne Marsh, 82,
Chapter 6 The Sleepers and Trafalgar Square Cherine Fahd, 100,
Chapter 7 Criminalizing "Camera Fiends": Photography Restrictions in the Age of Digital Reproduction Jessica Whyte, 110,
Chapter 8 In the Event of Amnesia the City will Recall Denis Beaubois, 134,
Chapter 9 The Face in Digital Space Martyn Jolly, 144,
Chapter 10 From Sixteen Google Street Views Jon Rafman, 158,
Chapter 11 Google Street View and Photography in Public Space Daniel Palmer, 168,
Further Reading, 185,
Contributors, 188,

CHAPTER 1

STANDING ON SHIFTING GROUND: PRIVACY AND PHOTOGRAPHY IN PUBLIC

Melissa Miles

INTRODUCTION

The fear that our privacy is under serious threat runs like a deep fissure through contemporary controversies about photography in public space, creating division between photographers and the photographed public. Uncertainties and anxieties prevail as mass media reports focus increasingly on diminishing privacy and concerns about photography in public, and calls for changes in privacy legislation and photography restrictions escalate in response. Bans on "spy phones" in public swimming pool change rooms at 110 YMCA sports and aquatic centres across the Australian state of Victoria in 2003 are amongst a raft of photography restrictions made in reaction to potential invasions of privacy in the fifteen years (Rose 2003). Concerns that mobile phone cameras may be used in change rooms also led to demands for a more widespread review of Australian privacy laws that same year (Mickelburough and Rose 2003). Similarly, when Surf Life Saving Australia proposed the prohibition of photography of its junior members on beaches without written parental permission, the restriction was couched in terms of a protection of privacy. Sean O'Connell, spokesperson for Surf Life Saving Australia, noted that "parents entrust their kids to us expecting that they will be looked after. One of the things we have to think about is their privacy" (Thorn 2005). Concerns about child protection, privacy and the banning of photography in public space overlapped and became confused, complicating the debate further still.

Although Australia does not currently have a statutory right to privacy, the popular perception that privacy is under threat has pushed this issue onto the public agenda. In July 2011, the Australian Federal Parliament invited responses from the public on the possible introduction of a statutory right to privacy (Stinson 2011). Then Minister for Privacy Brendan O'Connor described the changing climate leading to this initiative:

We know that privacy is a growing concern for everyday Australians — whether it is in our dealings with individuals, businesses, government agencies or the media ... Privacy is emerging as a defining issue of the modern era, especially as new technology provides more opportunities for communication, but also new challenges to privacy.

(Stinson 2011)

A public issues paper was subsequently introduced in September 2011 to canvas the prospect of introducing a statutory cause of action for serious invasions of privacy (O'Connor 2011). To date, no firm conclusions have been reached in response to these discussion papers. The debate nonetheless reflects an important shift in public opinion, which has for a number of years had a troubling impact upon the practice and perception of public photography in Australia and in other western liberal democracies.

In the 2005 report "Unauthorised Photographs on the Internet and Ancillary Privacy Issues," the Australian Standing Committee of Attorneys-General asked whether photography restrictions should be increased in order to protect our privacy even when we are in public. In contrast to existing laws that prohibit the production of particular types of offensive photographs in Australia in the name of privacy, the focus of this Discussion Paper was whether or not we should move towards legislating the context in which photographs circulate as a means of protecting privacy, even when their content is inoffensive.

As these debates continue with no resolution in sight, they foster the climate of uncertainty and suspicion, outlined in the introduction of this book, in which photographers are frequently questioned, threatened and physically assaulted simply for using their cameras in public. However, the longer-term concerns are for the effects that this atmosphere will have on our future recorded histories and experience of the public. In order to fully comprehend what is at stake in calls for greater photography restrictions in the name of privacy, this chapter will critique simplistic notions of privacy as a basic human right and develop a more rigorous understanding of the culturally and historically specific character of privacy. The need to remain mindful of the specific qualities of privacy law ensures that most of the case studies and examples will be drawn from the Australian context. These Australian events nonetheless reflect trends evident in other liberal democracies and thereby offer an important new perspective on international debates about privacy, photography and the public. After examining various definitions of privacy and their close ties to the historical rise of individualism and the development of new photographic technologies, the chapter will determine whether the benefits of restrictions on photography in public space outweigh their costs.

THE "RIGHT" TO PRIVACY AND PHOTOGRAPHY

Contemporary Australian debates about photography and privacy must be understood in relation to a much larger context in which the "end of privacy" is being declared with evermore frequency and fervour. In Australia, the United States and the United Kingdom during the last two decades, writers and social commentators have declared that our privacy is being eroded to such an extent that it may be lost completely. The Time magazine cover story from 25 August 1997 proclaiming the "death of privacy" is a striking example: the cover features a threatening uplit face staring at the viewer through a darkened keyhole, while the caption warns readers: "You have no secrets. At the ATM, on the Internet, even walking down the street, people are watching your every move. What can you do about it?" American writer Richard Spinello took a similarly pessimistic tone in his article "The End of Privacy" that same year, writing: "The title of this article may sound ominous, but it is intended to convey the stark reality that our personal privacy may gradually be coming to an end" (1997: 9-13). David Brin drew on more dramatic metaphors of warfare to argue that our "privacy is under siege" (1998). From the electronic distribution of personal information to receiving unwanted telephone calls from telemarketers, threats to our supposedly rapidly diminishing privacy have been identified with an array of sources. Photographic technologies play a prominent role in these discourses, as grievances about the challenge to privacy posed by unmanned drones, publicly mounted webcams, surveillance cameras, Google Street View and the paparazzi are raised frequently in the courts and mass media.

The notion that privacy is an inalienable, self-evident right that must be protected from a series of omnipresent threats has had a significant impact upon expectations for privacy even while people are in public. In a much-cited text on privacy torts in the United States published in the California Law Review, Dean William L. Prosser famously stated that:

On the public street, or in any other public place, the plaintiff has no right to be alone, and it is no invasion of privacy to do no more than follow him about. Neither is it such an invasion to take his photograph in such a place, since this amounts to nothing more than making a record, not differing essentially from a full written description, of a public sight which any one person would be free to see.

(1960: 391-392)

However, more recently law commentators including Andrew McClurg (1995), Elizabeth Paton-Simpson (2000) and N. A. Moreham (2006) have challenged Prosser's argument against privacy in public. These writers variously argue that privacy should now be extended to the public domain to take into account changing expectations of privacy and the impact of new surveillance and communications technologies.

The proliferation of surveillance technologies and the circulation of personal information have deeply informed two recent reports into privacy law in the Australian states of Victoria and New South Wales (NSW): the Victorian Law Reform Commission's Surveillance in Public Places: Final Report tabled in Parliament on 12 August 2010, and the New South Wales Law Reform Commission's Invasion of Privacy, Report 127, also issued in 2010. Chairperson of the Victorian Law Reform Commission Professor Neil Rees reported that the proposed reforms aimed to balance the benefits of public-place surveillance, such as security and crime detection, with the need to protect people against the risks of abuse (Rees 2009). The NSW Law Reform Commission's Invasion of Privacy Report 127 examined the extent to which the current privacy laws in NSW effectively protect individual privacy, with the aim of simplifying the law and addressing inconsistencies to facilitate adequate enforcement of privacy legislation. Unlike the 2005 Attorney-General's report into the unauthorized use of photographs online, these reports do not address the issue of the public photography directly, but they do point to recent shifts in expectations for privacy in public that have an important impact on photography in public space.

This spotlight on privacy in public is occurring at a time when there have been other developments in privacy law in Australia. The High Court's decision in Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) is commonly cited as an authority for the argument that there is no tort of invasion of privacy in Australia. However, the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) held that there was no Australian authority that impeded the development of a tort of invasion of privacy. More recently, there have been a number of further developments in common law in which courts in Victoria and Queensland have begun to formulate and recognize a tort for invasion of privacy. In Grosse v Purvis (2003), the Queensland District Court awarded damages to a plaintiff who had been stalked by the defendant, recognizing "a civil action for damages based on the actionable right of an individual person to privacy." In Doe v ABC & Ors (2007), the County Court of Victoria found Australia's national broadcaster liable for breach of confidence and in tort for breach of privacy for naming the victim of a sexual assault on radio. These cases, along with the more recent Federal Government call for submissions on the proposed right to privacy, underscore how privacy law is developing in other fields concurrent with debate about photography, privacy and the public sphere.

The argument that we should not have an expectation of privacy in public surfaces in some aspects of the contemporary Australian debates about photography restrictions, particularly in relation to photographs of women bathing on beaches. In commenting on the arrest of Peter McKenzie, a Sydney labourer who used his mobile phone to photograph women topless on Coogee Beach, the conservative newspaper The Australian warns women that they should not expect privacy in public. Although the author concedes that McKenzie "acted like a complete idiot," the locus of blame is ultimately shifted to the women bathers: "Those who choose to disrobe in public should remember that not so long ago it was they who faced arrest. They cannot have it both ways and should not be surprised if their nakedness causes others to stare — or even snap a photo" (2004). Such arguments fail to acknowledge photography's unique ability to intensify an invasion of privacy. There is a vast difference between being seen on a beach where we assume that we are being observed only casually and for a short time by a limited number of people, and being recorded, photographed or videotaped for the close scrutiny of a potentially vast audience. Being prepared to sun bake topless on a public beach does not equate with consent to the creation of permanent images that can be circulated and viewed repeatedly outside of their original context.

Issues of privacy in public are made more complex by claims to control over private property and the privatization of public spaces. As formerly public spaces such as shopping centres and railway stations are privatized, confusion can be created amongst photographers as to which spaces are private and which are public. One high profile case in Australia illustrates this confusion and the ways in which restrictions on photography in these privately owned public spaces are conflated in public discourse with other contemporary anxieties. Managers of Melbourne's Southbank shopping and entertainment complex arranged for signs to be placed around the complex in 2006 prohibiting photography. The day after the signs were erected, amateur photographer and grandmother Val Moss was stopped by the centre's security guards and asked to cease taking photographs "because of the terrorism overseas" (Webb and Ker 2006). After extensive media coverage, the then prime minister John Howard joined the debate, complaining on ABC radio that the ban was "over the top" and that the terrorist threat in Australia does not warrant a ban on photography (Anon. 2006). It is clear that in this case the threat of terrorism was used as a rationalization for the introduction of new regulations in the privately owned public space of the shopping centre. Not long after, the Melbourne Central shopping centre placed similar bans on photography on the grounds of safety, security, privacy and copyright issues (Webb and Ker 2006). Such restrictions and the manner with which they are enforced have wider implications for our experiences and expectations of privacy in public, as private security guards and private surveillance practices may not be subject to the same limits as public authorities. Increased demands for privacy in public, such as those addressed in the Victorian Law Reform Commission, Surveillance in Public Places: Final Report, can therefore emerge in response to these patterns of privatization of public space.

As professional Australian photographer Ken Duncan discovered in 2009 when working at the Cairns Esplanade Lagoon, there is also a risk that fears about a loss of privacy can be co-opted and utilized for the commercial gain of others. After being accused by security guards of being a potential paedophile — despite the absence of children in the area in which he was working — Duncan was forced to stop work at the Lagoon and pay a $665AUD fee for a one-week permit before being allowed to resume photographing. "I was told the main reason they're doing it is to protect people's privacy," recalls Duncan (Chamberlain 2009). A familiar slippage between privacy and the protection of children against sexual predators is evident in official justifications of these restrictions. The then Cairns Regional Council Chief Executive Officer, Noel Briggs, noted that rules regarding permits at the Lagoon were established in 2003 to "protect the recreational users of the facilities from predatory photographic practices." Briggs explained further: "I could get dressed up as a professional photographer and take a photo and I could be the biggest paedophile on earth — we are preventing that because we have a permit and we're protecting the public's interest" (Chamberlain 2009). According to Briggs's curious logic, payment of the permit fee had the dual purpose of ensuring that the photographer is not a paedophile and that the privacy of other users of the pool is protected. Forming a particularly potent brew, existing anxieties about the loss of privacy are here mixed with other public fears about crimes against children in order to stifle debate about the limitations that the Lagoon's management wish to place on photography and their desire to raise revenue from the practice.

This example also highlights how the perception of photographers as a threat to privacy, public security and child safety is indicative of a larger process of "othering" that pervades some aspects of privacy debates. As we aspire to protect our own privacy, we tend to deny the same respect to others because "we" are innocent and "they" are suspect. Various suspect "others" have appeared in the debates about photography restrictions, including male photographers deemed potential paedophiles, and people of foreign appearance who are labelled potential terrorists. In a climate in which carrying a camera is enough to place a person under suspicion, the conflation of other public fears with anxieties about privacy to legitimize photography restrictions will inevitably lead to further unfounded accusations against photographers working in public.

Rather than challenging these claims to a right to privacy, Australian photographers seeking to contest restrictions on their practice are countering them with assertions of other liberal rights. Such claims for photographers' rights deeply inform the strategies of the lobby group Arts Freedom Australia (AFA), which formed in 2004. Amongst the group's high profile activities was its organization of a rally in August 2010, in which approximately 700 photographers gathered at the Rocks in Sydney to protest against restrictions on photography in public space. Wearing t-shirts bearing the slogan "I'm a Photographer not a Criminal," the protesting photographers demanded more respect for their rights to both freedom of movement and expression. Similar claims for photographers' rights appear in the group's blog. A founding member of AFA, Duncan declares:

Australia has been a signatory to the International Covenant on Civil and Political Rights since 1980 and one of the articles of the ICCPR states that everyone has the right to freedom of expression and the right to impart information and ideas of all kinds whether it's in writing or in print, in the form of art, or through any other media.

(Rally for Concerned Photographers 2010)

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