Year 2, Essay 1

According to Geoff Dyer, throughout photographic history the taking

of someone’s picture without permission or knowledge has been an act
that has generated constant debate. Yet, Dyer continues, for many
photographers this practice ‘has become second-nature, an ethical
blind-spot’. Recent changes to ethical codes make it no longer
possible to ignore this blind-spot. With reference to photography
featured in The Ongoing Moment and to other relevant photographic
practice discuss the implications for contemporary photography of
these emerging ethical codes.

Daniel Foy

Module No.: PHOT20115

Tutor: Andrea Fitzpatrick

Word Count: 2,046

Taking someoneʼs photograph without their knowledge and/or permission is considered
something of an ethical and, more recently, legal blind-spot. There are numerous reasons
why such conditions may be of interest to a photographer: in some cases a photographer
may want to photograph someone without their knowledge for artistic or aesthetic effect; or
without their permission due to practical constraints, in the case of certain types of
photographs used to illustrate breaking news events. This is of particular concern to the
fields of documentary and street photography, where work produced is often dependent on
the subject being unaware that their photograph is being taken.

Methodologies for taking photographs without a subjectʼs knowledge differ between

photographers and cultures. The street documentary photographs featured by Geoff Dyer
in the opening section of The Ongoing Moment (2005) are principally by pioneering
American photographers; however, the laws regarding personal privacy in a public space,
at least in the UK and USA, are largely unchanged since these iconic images were
created. In 2008, Home Office Minister Tony McNulty stated: “There is no legal restriction
on photography in public places, and there is no presumption of privacy for individuals in a
public place” (Why street photography is facing a moment of truth, The Guardian, 2010).
However, sensitivities concerning the taking of a personʼs photograph without their
knowledge or consent is an issue with implications reaching further than the objective eyes
of the law, and is approached differently by individual photographers.

Both philosophy and aesthetic intentions inform the methodologies behind street
photography. The WNYC Culture interview WNYC Street Shots: Bruce Gilden (c. 2005),
showcases the somewhat confrontational practice of this celebrated Magnum
photographer as he documents the streets of New York. Whilst the photographs are made
without the subjectʼs consent, they are clearly very aware of his presence - Gildenʼs
approach is to hone in on a subject, then to penetrate their personal space with his Leica
and flash. The subject is typically captured in the moments prior to their understanding of
the situation. In one instance a pedestrian anticipates Gildenʼs intentions and pauses to
smile and pose for a photograph, which leads to him being chastised by a visibly irritated
Gilden, and then instructed to walk on.

What is perhaps most surprising about Gildenʼs approach is the lack of resistance by the
subjects. Despite his direct and somewhat confrontational approach, and despite clear
and understandable surprise, the subjects shown in the video interview largely continue
about their business without challenging Gildenʼs actions. This may seem a strange
concept to contemporary photographers in the UK, where such methods would likely be
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considered by the public to be an excessive breach of personal space and privacy. This
may be due American extroverted culture, but equally it may by a result of New Yorkʼs
uniquely rich heritage in street documentary photography.

The practice of street documentary photography in Britain is notably different. With British
law ruling that no-one has the right to privacy in a public place, it would seem logical that
candid street photography would be an accepted and popular field. However, this law also
safeguards corporate and state surveillance, which, along with other factors, has resulted
in Britain becoming the most surveilled nation in the world, ranking lowest in the EU and
alongside Russia for ʻindividual privacyʼ, and as the only nation in the EU rated in the
ʻblackʼ category, indicating ʻendemic surveillanceʼ (Britain: the most spied on nation in the
world, The Telegraph, 2006). This may understandably contribute to suspicion directed
toward British street photographers, as physical manifestations of an often unwelcome and
overbearing background hum of constant surveillance.

In this context, it is perhaps not surprising that British street photographers largely adopt a
more subtle methodology when photographing citizens without their consent.
Contemporary street photographer Matt Stuart sums up his philosophy in an interview with
Spine TV:

“Primarily you need to know that you’re not doing anything wrong. Primarily you need to
know that you’re not hurting anybody, and that what you’re doing you’re happy with and
confident about. Then you don’t give off any bad vibes, you don’t give off any stalker vibes,
you don’t give off fear.” (Matt Stuart’s street photography, 2010)

Stuartʼs description clearly indicates he is comfortable that he isnʼt acting in an ethically

questionable manner, whilst outlining a methodology that recognizes the sensitivities of his
subject matter. He does however indicate that, despite his own ethical comfort, there is a
natural fear associated with taking photographs without someones knowledge. He goes
on to state that: “[You can come across] a whole situation, an argument, or love, or
something happening, and you can go in and share it with these people and go out, and
they didnʼt realise you were there, and thatʼs a really nice feeling.” Whilst Stuart is clearly
mindful of the reactions of his subjects, the fact remains that he enters their space - private
not in a legal sense, but perhaps symbolically - and leaves with, in his case, a negative
that will become a physical object - a record of the subject and their actions at the time of
exposure - whilst the subject leaves empty handed and possibly oblivious. It is not an

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exchange that appears mutually beneficial, and the connotations of ʻtakingʼ a photograph
would seem to reinforce this.

Photographers that Dyer discusses in The Ongoing Moment also adopted measures to
help ensure that the subject was oblivious of their presence as a photographer, or at least
unaware of the true subject of the photograph that was being created. Strand affixed a
false lens to his camera, and took photographs at right-angles to the direction the false
lens faced in an effort to mask his intentions. Evans concealed a camera up his sleeve,
whist Winogrand took photographs so quickly that ʻeven if people notice they do not have
the chance to do anything about itʼ (Dyer, 2005, p.17).

These photographers went to lengths to deceive their subjects - Evans was even breaking
the law, as photographing on subway as he was without a permit was illegal - and yet the
contemporary ethical issues around creating these images are overlooked in many
modern photographic texts. Dyer touches upon the issues around ʻtakingʼ photos of
beggars whilst offering nothing in return, but states that in Strandʼs case “only by deceiving
his subjects that he could be faithful to them.” (p.13) However, this doesnʼt address the
question of whether Strand had the moral authority to create these images without the
subjectʼs knowledge, much less if the subjected actually wanted to be photographed.

That isnʼt to say necessarily that Strand was acting immorally in creating them, but rather
that it is a dilemma that is becoming more significant and less avoidable in todayʼs society.
Philip-Lorca diCorcia, who photographed unknowing passersby using a flash system
rigged to a scaffold in his ʻHeadsʼ series, was sued by an Orthodox Jew on the grounds
that his privacy and religious rights had been violated in the act of exhibiting this image in
a gallery (Why street photography is facing a moment of truth, The Observer, 2010).
Although the case was dismissed on grounds of the image being created for art rather
than commerce, the case is a notable indicator of increased demand for control over
personal privacy and control over personal representation in the public sphere.

There are other methods of photographing people without their ʻknowledgeʼ, although
these methods present an additional set of ethical issues. Dyer explains the interest of
photographers in images of the blind at length, which at one point he summarizes by way
of a quote from Diane Arbus, who also photographed the mentally ill: she likes them
ʻbecause they canʼt fake their expressions.ʼ (p.44). Arbusʼs statement of interest in the
blind and mentally ill likely also applies to the street photographers discussed by Dyer -
besides being visually unaware of the physical manifestations of emotion, the blind cannot

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return the gaze of the photographer in the conventional sense, regardless of whether they
have given their permission to be photographed. In addition, many modern interpretations
of the work of pioneering street photographers place emphasis on the point that the
photographs chosen make statements about class poverty and the role of disabled
persons as they choose to display themselves in society. A primary ethical concern with
this is that blind persons photographed are by nature of their condition more vulnerable;
not only socially and in terms of their physical, emotional and financial security, but also
perhaps to exploitation by third parties - including exploitation by the photographers
themselves.

The photographers featured presumably benefited directly from their respective

photographs of the blind. The photographs that Dyer chose to illustrate the opening
section of The Ongoing Moment include photos of blind persons by Paul Strand, André
Kertész and Walker Evans that have contributed to their respective successes as
celebrated photographers. It doesnʼt seem particularly likely that this was a primary
motivator behind the creation of the photographs featured; however, the ethical issue still
stands: the respective photographers benefit directly, while it seems that the subjects
benefit at best indirectly. This isnʼt something that is obviously compatible with the
capitalist mentality of the majority of western cultures. The sensitivity around this issue is
magnified where issues around ʻvulnerableʼ subjects such as the homeless or disabled are
concerned.

Besides capitalism, another cornerstone of contemporary western culture is the external

presentation of oneself, and the idea that a person is able to express themselves through
their choice of material purchases, clothing, cosmetics, and conscious reactions. People
expect to be able to manage every aspect of their outward appearance to influence the
way they are perceived. However, this ʻmaskʼ of personality is infringed upon in the act of
being photographed whilst one is unaware of being watched, or is lost in ones thoughts.
This is one of the factors that made diCorciaʼs ʻHeadsʼ series intriguing to view, and one of
the reasons Arbus likes photographing the blind and mentally disabled; in her words: ʻThey
donʼt know what their expressions are, so there is no maskʼ (Dyer, 2005, p.44). In
diCorciaʼs case, the subjectsʼ lack of control over their presentation is an intrinsic factor of
the work. With a methodology opposed - although not necessarily maliciously - to
presenting subjects how they wish and expect to be presented, perhaps it shouldnʼt be
surprising that he was sued.

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The most recent obstacle facing British photographers is British Anti-Terrorism legislation.
The legislation is significant both because it affects a wide range of photographers as
varied as street photographers, journalists, and tourists, and because parts of the law have
in the past been misused in a virtually systematic fashion to restrict innocuous, previously
ethically acceptable, and still entirely legal photography of all kinds, with no obvious link to
terrorism, whilst the photographer is working in public spaces - for example, the stopping,
searching, and detaining of a 15 year old photographing a parade (Young photojournalist
detained for army cadet pics, The British Journal of Photography, 2010).

Two particular elements of the Counter Terrorism Act 2008 affect photographers: Section
44, which was retired mid 2010 and allowed police officers to conduct on-the-spot
searches; and Section 76, a more recent addition which concerns the creation or soliciting
of ʻinformationʼ (including photographs) about members of the armed forces. Despite both
sections of the Counter Terrorism Act being created for use against legitimate terrorist
threats, both have been used by frontline police officers to deter photographers from their
legal right to photograph police officers without their prior permission. While it is important
to question the ethics of photographing someone without their permission, the ethics
concerning misusing laws for purposes other than for which they were intended must also
be addressed.

Photographers are not hampered by Sections 44 and 76 alone, however; an advertising

campaign launched by the Metropolitan Police Service encourages people to report
photographers who ʻseem oddʼ as potential terror suspects (Metropolitan Police Service,
2008). Vague language such as this encourages paranoia directed at photographers
creating photographs of anything out of the ordinary.

Thus, questions regarding the ethics of photographing people without their permission, or
using deceitful methods, are now not merely philosophical questions alone - negative
responses, right or wrong, could easily have tangible consequences for a photographerʼs
freedom.

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References
ALAFOTO, 2010. Henri Cartier-Bresson quotes [online]. Alafoto. Available at: http://
alafoto.com/?p=1137[Accessed on 17 January 2011].
DYER, Geoff, 2005. The Ongoing Moment. Great Britain: Abacus.
JOHNSTON, Philip, 2006. Britain: the most spied on nation in the world. The Telegraph
[online]. Available at: http://www.telegraph.co.uk/news/uknews/1533054/Britain-the-most-
spied-on-nation-in-the-world.html[Accessed 15 January 2011].
LAURENT, Oliver, 2010. Young photojournalist detained for army cadet pics. The British
Journal of Photography [online]. Available at: http://www.bjp-online.com/british-journal-of-
photography/news/1719526/photojournalist-detained-army-cadet-pics [Accessed 20
January 2011].
Matt Stuartʼs street photography, 2010. [Video interview]. England: British Journal of
Photography Online [Used with permission from Spine TV]. Available at: http://www.bjp-
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[Accessed on 15 January 2011].
METROPOLITAN POLICE SERVICE, 2008. Met Launches New Counter-Terrorism
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7
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