The beautiful bold headline above Jemima Lewis’s article on the Daily Telegraph’s website reads “There is no law against photographing children”. Whilst that is sort of true, I wish that it was that easy. I have photographed over 3,500 schools in 13 different countries during my career and I wish that I had a one pound sterling for every time that someone has quoted a law about photographing kids that doesn’t exist. I can tell you now that the amount of money that I could have raised would mean that I wasn’t driving a four year old car with almost 100k miles on the clock.
So what is the law here in the UK? One of my jobs at the Times Educational Supplement was to draft a set of guidelines for the picture desk team (when we had one) and the editorial teams to follow when commissioning, researching and using images of children. We also had a budget to get a Barrister to go over the relevant facts so that the guidelines (finished in 2007) could be adopted with confidence.
There is a subtle distinction between taking and publishing pictures and of course that takes us down the whole what constitutes “publication” debate but for the purposes of what I want to talk about here let us assume that anything you take might get published.
There are essentially two laws on the UK books that mention photographing children. First of all there is the The Child Protection Act 1978 which bans indecent photographs of children – that’s as it should be – indecent images of children should never be taken and should therefore be impossible to publish but what constitutes indecent? Where does innocent become exploitative? Is swimwear on the beach or in a swimming pool somehow indecent? These are all questions that have to be assessed on a case-by-case basis because you could not draft a set of rules about these kinds of pictures. I’m pretty sure that I know when something becomes indecent and I’m also pretty sure that 99% of the population would agree.
The trickier act to take into account is the Children & Young Persons Act 1933 which, in Section 39 says that you can never publish photographs that identify children as Wards of Court or subject to mandatory orders and goes on in Section 49 to place an automatic ban on the identification of any child, their school or location involved in youth court proceedings. Photographs used in print or online that in any way go against a court order could be classified as contempt of court.
And that’s it for legislation that specifically mentions photography but it doesn’t end there because several other laws have an effect on when and where you can take pictures of kids – even your own. The owner of land or premises or the promoter of an event can, quite legally, make it a condition of entry or access that you don’t take pictures. This would be a civil matter and so you can’t be arrested for it unless you have been asked to stop doing it and leave and then refuse to do so.
More worryingly, there is a small but growing amount of case law that concerns privacy. The best advice is that photographers need to be sensitive and apply their own tests of “public interest” before shooting the pictures. Under both domestic and international law, a child’s right to be protected from harm and to have their basic physical and social needs provided for is uncontroversial. In recent years, children have also come to be viewed as holders of a wider range of rights associated with expressing their views and participate in the making of decisions that affect them directly. For example, if a child states that they do not want their picture taken, even if parental and school permission has been granted, that decision should be taken into account.
Everyone has guidelines and rules. Everyone is scared of a US style litigation based culture becoming part of our system and because of this, the knee-jerk reaction of small bodies who know no better and of some large ones that really should know better is to stop people taking pictures of their own children “just in case” they get someone else’s kid in the same picture. This will strip a whole generation of having mementos of some of the most important and formative events in their lives. The words “disproportionate” and “ludicrous” come immediately to mind.
The whole “no pictures” culture has also turned photographers into subjects of suspicion who might somehow take an innocent picture of a kid and do bad things with it. Please, that is not happening. The truth is that abusers do their thing behind closed doors. The truth is that photography is a big part of the nation’s culture and denying the ability to take pictures is devaluing our culture. So, thank you to Jemima Lewis for keeping the issue on the pages of Telegraph’s website and thank you to everyone else who thinks that she is right.