Hungary's new Civil Code, which took effect on 15th March, stipulates that photographers must obtain permission from their subjects every time they trip the shutter, even when working in public areas. Failing to do so could result in the photographer being sued – potentially by each and every person identifiable in the photo! – and ordered to pay a substantial sum in compensation to the plaintiff(s).
The law states that everyone has an inherent “right to their likeness,” which must be respected – meaning you should not take, much less publish, their picture without their consent. There are two exceptions to this rule: public figures making a public appearance, and crowd shots. However, there is no clear guidance on who can be considered a public figure, what is deemed a public appearance and how many people constitute a crowd. For example, does the group of girls in the first photo look like a “crowd” to you? Did they “make a public appearance” by crossing a bridge wearing their folk dancers' costumes?
You are free to photograph 'public figures making a public appearance' - but not others
Photo © Viktória Árva-Tóth, née Hanis
These questions are not merely rhetorical. Far from it. One of the most hotly debated issues is the question of whether police officers on duty can be considered “public actors making a public appearance” or not. According to a 2012 ruling by the country's supreme court, police have the same right to their likeness as everyone else, thus their faces must be blurred, masked out or pixelated unless they have explicitly consented to their picture being published.
In fact, this is precisely what proponents of the new legislation are saying: namely, that the new Civil Code does not bring anything new to the table in terms of the regulation of photographing people in public. Indeed, the “right to one's likeness” was already incorporated into the country's previous civil code, enacted in 1959. Critics, on the other hand, point out that the old law had only required that permission be obtained for the publication of a photo, whereas the new Civil Code mandates that photographers ask for the subjects' consent to take the picture in the first place. This may well put an end to photojournalism (and street photography) as we know it.
The other major difference is that the new law practically equates the abuse of one's likeness with grievances, meaning people claiming that their picture was taken/used without permission no longer need to prove that the publication of the photo did any actual damage to their reputation, careers, relationships etc.
To get past the legalese, we sat down with two working pros who have been in the photography business for over 25 years each, to find out about their views on the changes. One of them is Ferenc Isza, a staff photographer at the tabloid Bors and a stringer for AFP, whose pictures have been printed on the pages of world-class publications such as The Guardian and The Economist. “Bors has been issuing its photographers with stacks of model releases for the past 6 or 7 years,” he says, noting that courts had been known for having a tendency to rule in favour of plaintiffs in privacy infringement cases involving photographs long before the new Civil Code took effect. “Asking for my subjects' permission and cooperation has always been my default mode of operation. It's not like you can jump in front of people out of nowhere, and take their picture with a wide-angle lens at point-blank range anyway. If you approach them with respect, chances are they will cooperate. It all boils down to your communication skills.”
Gábor Mónos – another veteran photojournalist and picture editor, who covered the civil war in Yugoslavia in the 1990s and freelanced for numerous international photo agencies and news services including AFP, DPA and EPA – takes a more pessimistic view. “[This law] delivers a significant blow to the freedom of the press,” he opines. “I'm afraid it may lead to self-censorship.”
He also points out that in some cases, even public figures might sue a photographer for a photo taken without their permission. “For example, what if you photographed a politician in front of his own house? Politicians are 'public actors' but the law requires that they 'make a public appearance' in order for you to be able to photograph them without their consent.” To further complicate matters, permission to take a picture can be granted through implied conduct, such as waving to the photographer or posing for the camera, but this does not necessarily mean the subject will also have consented to the publication of the photo.
One point both photographers agree on is that the introduction of the concept of grievance money will likely result in an avalanche of lawsuits against photographers and media outlets. “Some cunning lawyers will doubtless specialise in finding and approaching ordinary folks appearing in press photos, and get them to sue the paper if they haven't consented to being photographed,” Mónos predicts. “This may drive smaller publications out of the market. Others may take to using stock photos exclusively.” Isza agrees: “It's the grievance money that makes newspaper editors cringe. Tabloids, in particular, require and carry a lot of pictorial content and even if you do strive to obtain a signed model release every time you take someone's picture, this may not always be possible due to time constraints or the peculiarities of the situation.”
Why You Should Care
You may wonder why you should care about a peculiar law in a small – and for you, possibly remote – Central European country, after all. Well – while the Hungarian regulation might well be the most restrictive in the entire Western world, legal limitations on photographing strangers (as well as buildings, railroads, vehicles etc.) do exist in other countries too. Isza, who has worked for the Audiovisual Unit of the European Parliament and the European Commission's Audiovisual Service, notes that these institutions also require photographers to enclose signed model releases with their photo submissions, even if they are intended for editorial purposes only. “Actually, they provided me with two model release forms, one for adults and one for children,” he says. “It's not easy to have your subjects sign them when you're working with, say, asylum seekers who don't speak your language. But it's doable, and the results are usually worth the effort.” Some European countries, such as France, had incorporated the “right to one's likeness” into their legal frameworks well before Hungary did – although they never went as far as to “ban” photographers from photographing police officers on duty. In the UK and the US, you are theoretically free to photograph anyone in public (and use the photos for editorial purposes) but fears of terrorism and paedophilia – among other things – have made police officers wary of photographers in general. A few years ago, our very own editor-in-chief was stopped and searched in central London for “taking photos of iconic landmarks.” At one point, the relationship of photographers and the police got so strained that the British Journal of Photography launched a campaign calling attention to the fact that photography was not a crime. Reports of photographers being harassed by police in the United States have also become rather frequent in recent years. Photography, which was once considered an innocent hobby and a respected profession, is now carrying an ever-growing risk of legal complications all around the world.
What do you think? Is asking people's permission to take their picture part of basic human decency? Should it be required by law? Or would such a requirement kill decisive-moment photography altogether? Let your voice be heard by leaving a comment below.
Photos © Zoltán Árva-Tóth, unless otherwise noted