Given that a person’s body and face are personal data, the Personal Data Protection Act applies to photograph people. There have been a number of explanations for photography in schools and kindergartens, but what about the situation on the streets?
Can I take pictures of people in a public space?
The first step is to assess whether people are recognizable in such photographs. According to the case law, the characteristic of a person is the face, so if it is not possible to identify a person’s face in photographs, it is not personal data. In certain situations, it is also possible to identify a person through special features, such as tattoos.
The person must be recognizable primarily to the viewer (not to the person himself). If the person in the photo is identifiable, the rules of personal data apply, including the need to obtain the person’s consent to take pictures and publish the photos. However, there are some exceptions to the law that also apply to photography in public space.
For example, use for journalistic purposes and media coverage is permitted without a person’s consent, provided that this is in accordance with the principles of journalistic ethics and that the disclosure of photographs does not infringe the human rights of the data subject.
Taking street photos and videos is therefore allowed to cover current events, such as the rally in Toompea. At the same time, there is no journalistic purpose in publishing a photo of a city dweller sleeping at a bus stop.
What about events?
Photographing an event in a public place. In such a case, the data subject’s consent shall be replaced by informing him or her in a form that enables him or her to understand the fact of being photographed and to avoid it if he or she so wishes. Notification is not required for a public event where taking photos can be presumed.
Thus, in the case of a joint start of the Tartu Marathon, it is not necessary to ask the participants for consent to take pictures and film. It is also not necessary to create a separate start corridor for participants who do not want to be filmed or photographed. Whoever comes to the starting line must accept that they will be photographed or videotaped.
The publication of photographs is justified on grounds of legitimate interest. Does the interest in taking and publishing the photograph outweigh the fundamental human rights and freedoms, taking into account the person’s reasonable expectations? People who have come to the song festival procession expect to be photographed there and the photos will be published on social media.
Therefore, the grounds for the publication of such photographs is a legitimate interest. A person who goes to take out the trash in the evening cannot reasonably expect to be photographed and the photograph published. There is therefore no legitimate interest.
Personal data may be processed for the purposes of academic, artistic, and literary expression without the consent of the individual, in particular with the purpose to publish, provided that this does not infringe the data subject’s rights.
When photographing on the streets, it is quite difficult to assess when the author’s self-expression outweighs people’s privacy. Apparently, it would be quite difficult for the court to rule in favor of the photographer if fifty people claimed that they had been secretly photographed while taking out the trash. Thus, the exception of self-expression would apply in special individual cases.