Montreal City Weblog

Kate 19:32 on 2023-09-08 Permalink Reply  

• waffles 09:09 on 2023-09-09 Permalink

  Folks, pls don’t photograph homeless people’s faces, they deserve privacy even though they’re forced to live outside :’(

• Kate 10:12 on 2023-09-09 Permalink

  I photographed him at a steep angle that would make his face unrecognizable, while still giving him a sense of identity. I didn’t intend any harm or mockery.

• Meezly 10:40 on 2023-09-09 Permalink

  Hopefully he was asked to give his consent for his image to be published.

• Kate 10:43 on 2023-09-09 Permalink

  No. He wasn’t. I thought it newsworthy that things have come to such a pass that someone would camp out on a sidewalk. I felt this was a social phenomenon, not a portrait of an individual, and I didn’t want to get into a debate with the guy.

• Chris 12:55 on 2023-09-09 Permalink

  Kate, your photo is fine. Quite discretely taken, as you say.

  But anyway, he’s in public; your picture can be taken in public. And it is, constantly, by security cameras, doorbells, cars, etc. It’s allowed for all of them, and it’s allowed for you too.

• dhomas 14:28 on 2023-09-09 Permalink

  If you’re in a public place, having your photo taken is fair game. Your photo, Kate, is actually quite discreet. Try going to Walmart. They no longer employ any cashiers, so they are constantly filming you at the “self-checkout”. Now THAT’S intrusive!

• Blork 14:35 on 2023-09-09 Permalink

  While I agree with Waffles that we shouldn’t gratuitously photograph homeless people without their consent (particularly if the photograph shows them at their most vulnerable, but that’s a whole separate discussion) I am not offended by or opposed to this particular photograph. As Kate says, it’s somewhat newsworthy, and the person isn’t really recognizeable.

  But Chris’s comparison isn’t valid. While there are indeed security camera galore, the images captured by those cameras generally are not published. It’s one thing to capture an image of a person, while it’s another thing to publish the image.

  But even that is fraught with grey areas and fuzzy edges. Thanks to Aubry vs. Editions Vice-Versa (1998) the Supreme Court of Canada ruled that everyone in Quebec has the right to their own image, according to section 5 of the Quebec Charter. This has largely been interpreted as meaning that even when out in public, you own the right to your image and it cannot be published without your permission (barring certain conditions such as a significant newsworth event, etc.). This basically means that (technically speaking) street photography is illegal in Quebec (unless you get permission from everyone you photograph, which is highly improbable and impractical when doing candid street photography).

  And although this might seem like I’m contradicting myself WRT what I said about Chris’s comment, the Aubry vs. Editions Vice-Versa ruling can be interpreted to mean you cannot even take such photographs, let alone publish them. But I don’t think that has ever been enforced or challenged.

  It’s a sticky quagmire, but as far as I know it is largely unenforced because it’s a civil issue not a criminal one. So a cop won’t stop you from taking street photos, but if someone you photograph sees the published photo and objects, they can sue you. In practice this rarely happens, if at all.

  Such is the nature of civil law.

  You can read all the gory and mundane details here: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1608/index.do

• Blork 14:37 on 2023-09-09 Permalink

  (My comment about Chris’s comment also applies to dhomas’s comment.)

• Kate 16:39 on 2023-09-09 Permalink

  Blork, I don’t believe the ruling in Aubry vs. Editions Vice-Versa has been challenged since the web, but the definition of “publish” has changed since that time. Lots of people take candid shots and post them to Instagram or Facebook, or sites like Flickr, or personal blogs – and I don’t believe it’s been tested whether that’s legal. It may not be socially acceptable to some.

  But I maintain that my photo here was not done to mock or criticize. I was struck at the necessity for someone to bed down on the street. When I was a kid I remember accounts of places where people had to do that to get by. I never expected to see it here.

• Blork 19:57 on 2023-09-09 Permalink

  Frankly, I don’t think the ruling of Aubry vs. Editions Vice-Versa has been challenged since Aubry vs. Editions Vice-Versa (I might be wrong). It’s true that social media and Flickr are flush with candid street shots, and few people are complaining. I suspect few people even know about Aubry vs. Editions Vice-Versa or at least understand it.

  Bear in mind this is civil law, not criminal law. So it’s only a thing if (a) someone SEES their photo used somewhere, (b) feels they have been harmed or “damaged,” (c) understands that Aubry vs. Editions Vice-Versa gives them recourse, (d) has the gumption to lawyer up and sue. That’s a lot.

  So in the end, Aubry vs. Editions Vice-Versa is basically just a precedent that’s been sitting around idle for 25 years. The worrisome thing is just that it was such a wishy-washy case. The ruling talks about balancing “damage” to the individual (including a loss of their sense of ownership of their image) with freedom of expression, but the result isn’t very balanced if you ask me. The only “damage” that Aubry cited was that a few people at school laughed at her, which is weird because there is nothing embarrassing or laughable about the photo that was published. (I’ve seen it. It’s a dark B&W night shot of a backlit teenager sitting in the illuminated doorway of a store.)

  And again, i don’t think there is anything wrong with your use of that photo in the original post.

• Ian 20:20 on 2023-09-09 Permalink

  TBH I didn’t assume this guy was homeless – he has a clean sheet, for one. Maybe it’s just hot in his apartment. Maybe he’s doing a bit. Doesn’t look homeless, though? This is not to say that he isn’t experiencing homelessness in some form but I certainly didn’t interpret it as suffering-of-others-porn as Waffles suggests.

• Kate 10:08 on 2023-09-10 Permalink

  Who would voluntarily bed down on a sheet of cardboard on the sidewalk of a moderately busy, noisy street, if he had any alternatives?

• Meezly 10:57 on 2023-09-10 Permalink

  Further to Block, it’s more a question ethics, not legality. It’s not about the photographer’s motives nor the viewer’s opinion – it’s about the person in the photo. Your intention may be harmless, but you can’t control how that person is going to be construed by others, and his image is being used to make a point (he is still identifiable by his tats and part of his face).

  Just because other amateur image-takers do it all the time doesn’t necessarily make it right to take candid photos of the homeless and post it to a public news site without their consent. The ethics have definitely become blurred now that everyone has a camera through which they can instantly share images on the internet. But professionals and photojournalists are required to use consent forms if taking photos of people in public. If unsure, just a simple googling of the ethics of street photography of the homeless may help. Some ex’s:

  “Some ethical considerations for the modern-day street photographer include: Respect the privacy and dignity of the people you are photographing as much as possible. Consider the power dynamics at play when taking photos. Be culturally sensitive so as not to feed into stereotypes and biases.”

  “If you’re on a public street, you’ve given implicit consent to be observed. For homeless people, however, their consent to be observed really isn’t implicit. They can’t theoretically revoke or decline that consent because they have no place to go. One way around the ethical dilemma is to simply ask permission.”

• Tim S. 11:43 on 2023-09-10 Permalink

  I agree with your overall point, Meezly. I was struck by this line:”The ethics have definitely become blurred now that everyone has a camera through which they can instantly share images on the internet.” I would actually argue that this is where ethics become most important: just because everyone does it doesn’t mean it’s OK, and it would be very nice if we could set a social standard of what is and isn’t acceptable to go along with Aubry vs Vice Versa (which, when I last spoke to a lawyer a couple of years ago about this very topic, was still very much a consideration and not ‘idle’).

  BTW Blork, back when I was doing my own research on Aubry, your comments on another forum were pretty high on Google. So I don’t really agree with your take, but good job getting it out there!

• Ian 11:48 on 2023-09-10 Permalink

  @Kate I was thinking maybe an artist making a statement but you were there so i defer to your judgement.

• Blork 12:14 on 2023-09-10 Permalink

  I want to be clear that I agree with the ethical position of NOT photographing homeless (or other vulnerable people) in a way that they are recognizable if you do not have consent. I see this a lot in the various photography forums I frequent, where someone will post a photograph of a poor and probably homeless person looking very down and out, and the photographer will use a caption that’s supposed to invoke our sympathy. No. Don’t do that. Or only do that if you are doing a legitimate documentary project in which you are working WITH those people to expose their lives and vulnerabilities. Doing a consentless one-off just to show that you can make photos like a “real” documentary photographer is bogus.

  My concerns with Aubry vs. Éditions Vice-versa have to do with general candid street photography. And it burns me up in particular that many of the people who love to be first to complain about a street photographer’s lack of consent for the photos they show (not homeless, I just mean general candid street shots) are over in another forum praising the work of Henri Cartier-Bresson, Robert Doisneau, Vivian Maier, etc., none of whom ever got consent for their candid street photos.

  All that said, I still don’t think Kate’s photo was inappropriate, for reasons of recognizability (despite the tats) and intention.

• Kate 14:15 on 2023-09-10 Permalink

  Ian, I would imagine if he were an artist who wanted to make a statement, he could have found a spot with more visibility. Jarry’s a fairly busy, well travelled street, but there are many places around town where he could have found a comparable spot – even one on the same block as a big church because we have plenty of those – and had many more eyes on him.

• H. John 17:53 on 2023-09-10 Permalink

  Blork wrote:

  “you own the right to your image and it cannot be published without your permission (barring certain conditions such as a significant newsworth event, etc.). This basically means that (technically speaking) street photography is illegal in Quebec”

  Clearly that isn’t what Aubry says.

  In Aubry the court went out of its way to state clearly:

  “The respondent’s right to privacy must be interpreted in a manner consistent with the appellants’ freedom of expression and the public’s right to information, ….”

  Freedom of expression and the public’s right to information was not raised or argued in Aubry (the photographer argued it was taken for artistic reasons), and therefore the decision did not include any analysis of those interests.

  In fact the court wrote

  “I do not think it appropriate to specify, in the context of the present case, the circumstances in which the public interest prevails over a person’s right to his or her image.”

• H. John 18:03 on 2023-09-10 Permalink

  @Chris, you wrote:

  “But anyway, he’s in public; your picture can be taken in public. And it is, constantly, by security cameras, doorbells, cars, etc. It’s allowed for all of them, and it’s allowed for you too.”

  Teresa Scassa, U of Ottawa prof who amongst other titles holds the Canada Research Chair in Information Law and Policy, didn’t see it as clearly as you do.

  She wrote in 2010 “there are indications that the law of Quebec, at least, favours some degree of privacy in public space.” Her wording suggests she doesn’t think its settled law.