"You don't have my permission to publish that!" she yelled as I snapped off a few shots with my old T-70. It was the mid-90s, and she was being led out of a house packed full of pot plants by police officers. As a news photographer covering a story I had every right to submit the photo for publication, but it's rarely so simple. Fortunately for her, grow op busts in the area were so common that only the slowest news day would result in the photo being published.
There is nothing more confusing to a photographer as privacy laws, releases, and what rights the photographers and their subjects actually have. Things like focal length, shutter speed, and colour saturation are the same no matter where you are, or what language you speak. Who you can take a photo of, and where, can vary from country to country, province to province, and even from one town to another. Now, if you are a Canadian photographer taking pictures in another country and uploading them to your website hosted in the US, it gets even more complicated. It's enough to turn any photographer into a dedicated libertarian anarchist, purely as a result of too many rules.
Don't lose hope though. First of all, the laws are so vague and confusing that many are practically unenforcable, except in the most flagrant cases. Secondly, few of your subjects have the slightest clue what their actual rights are. This doesn't mean you can intentionally misuse their images, but it does buy you a bit of slack when you don't get it right 100% of the time.
I know legal talk gets people's minds wandering, so to keep you focused here's a photo of some pretty people on the beach at Tribune Bay, Hornby Island. Note how their faces are hidden so that no release is required.
Before I go too far, I need to point out that I'm not a lawyer, and this is just an opinion piece, not legal advice. When that person you've been following around taking pictures of has you arrested, do not bring me into it.
Speaking of following people around, let's address privacy. Before you worry about what rights you and your subject have concerning the image you shoot, you need to first consider if it's legal to take the shot in the first place. In Canada the law affords all citizens a reasonable right to privacy, and freedom from undue harassment. This comes down to manners basically. Regardless of what the law says, it's rude to intrude on anyone's personal space, and doing so with our cameras just contributes to mistrust of all photographers.
Criminal Code of Canada, 162. (1): (“Criminal Voyeurism”)
Every one commits an offence who, surreptitiously, observes – including by mechanical or electronic means – or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy
You may notice a lack of paparazzi in Canada. That's because their tactics are illegal here. You cannot chase or stalk people to get their photograph, and the subject being a public figure does not change that. News reporters can knock on someone's front door, but they can't camp out outside a home like they do in the US.
What if the person is in public? This get's a little vague, but it basically boils down to "prominent subjects". If you take a landscape, or streetscape photo, it isn't reasonable or possible for you to obtain a release from every recognizable figure. The scene is the subject, not any particular person. However if you are focusing on a street performer, a person sitting on a bench, or if any person or group of persons are the main subject matter then they are fair game to shoot, but the BC Privacy Act sets out several requirements for how the photo may be used, and what consent is required from the subject. Much of this depends on how you present the image, and what purpose you are using it for.
Privacy Act, 3.:
(1) In this section, “portrait” means a likeness, still or moving, and includes
(a) a likeness of another deliberately disguised to resemble the plaintiff, and
(b) a caricature.
(2) It is a tort, actionable without proof of damage, for a person to use the name or portrait of another for the purpose of advertising or promoting the sale of, or other trading in, property or services, unless that other, or a person entitled to consent on his or her behalf, consents to the use for that purpose.
(4) A person is not liable to another for the use, for the purposes stated in subsection (2), of his or her portrait in a picture of a group or gathering, unless the plaintiff is
(a) identified by name or description, or his or her presence is emphasized, whether by the composition of the picture or otherwise, or
(b) recognizable, and the defendant, by using the picture, intended to exploit the plaintiff’s name or reputation.
So you can take a photo of the crowds in Bastion Square and use it for an advertisement about tourism without getting any releases, but not if any particular subject is emphasized (by depth of field, or selective colouring for example), or if a recognizable person is used, implying their endorsement.
Needless to say, all posed shots require consent of the subjects to use the image commercially. The same goes for anyone who is the focus of an image. Though a release form isn't a legal requirement, it's the best way to prove consent, and no reputable publisher will buy the image without one. If you really want to cover your bases, shoot a quick video clip on your phone of the subject giving you permission to use the photo. That way you have an iron-clad record of both written, and verbal consent from the subject.
One last thing, minors cannot give consent for their image to be used. Only their legal guardians can.
As you can see, I'm not one of those "Get a release for everything!" types. I think that adding too much paperwork discourages people from shooting. In reality, most people will never need a release. BC actually has pretty decent balance in it's privacy act, and affords the photographer a fair amount of latitude.
However there is one thing that getting that release signed does that has nothing to do with legalities. It forces the photographer to engage his subject on a human level, and from an artistic standpoint that greater understanding of the subject is of tremendous benefit.
For a very well written and in-depth guide to Canadian photography laws, the Ambient Light blog is a must-read. Much research for this post came from there, and sources they point to.