In the European Union it is in the main legal to take photographs from public spaces and then publish them, even if they include identifiable people — and people do so every day in the millions to sites like Flickr, Facebook, Twitter, or to their own blogs. This precedence of the right to free expression over the right to privacy in the public space is a long-standing legal norm, and it has made possible some of the past century’s best photography — street photography, pioneered by the likes of Henri Cartier-Bresson and Robert Frank, who obsessively recorded the everyday gestures and habits of urban life, away from the headlines of the day.
In Slovenia, however, the past few months has seen a bizarre new legal constraint emerge: Should you take photographs in a public space in Slovenia that are social documents but not newsworthy (for example of a street merchant, or a moped driver) and opt to transform them into a 360-degree panorama format before publishing them, you are now obliged to first remove all recognizable faces, or face fines. Furthermore, this decree is applied retroactively, to all panoramas ever taken in Slovenia.
What happened? The Slovenian information commissioner has decreed that 360-degree immersive panoramas by their very nature cannot have the same purpose as conventional photographs, but also that the balance of rights between free expression and privacy depends on a photograph’s purpose — in this case, as expressed by the photographer’s choice of technical format.
The upshot is that if the following panorama had been taken in Slovenia, all faces would need to be removed before it can legally be published online, because it does not indisputably record a newsworthy “event” such as a concert, protest march or accident, even though it is clearly an example of street photography:
A conventional photograph in the genre of street photography, however, would have no such constraints, even if it is more invasive of individual privacy in the pursuit of free expression:
What is currently unclear, however, is if conventional photography taken in Slovenia that does not pass muster as street photography — with an architectural object as its subject, or a snapshot of friends with strangers in the background — requires the anonymization of people in the image:
(So that we’re all on the same page: 360-degree panoramas are made by taking several wide-angle photographs from the exact same spot and then using computer software to stitch them together so that they seamlessly portray the view in all directions. The resulting image can be displayed as an interactive experience on a computer screen, an equirectangular flat image format or as an image in any number of different projections. There are edge cases too: A conventional-looking flat photograph may be stitched together from several component images, such as this one (6 images) or this one (5 images). There are panorama cameras that take ultra wide-angle conventional photographs, while smartphone applications let consumers sweep their phone camera to make panoramas, up to and including 360-degree panoramas.)
So how did an arbitrary technical distinction come to decide whether an uncensored photograph is legal or illegal in Slovenia? The following is a cautionary tale of what happens when non-technical regulators meet a new-to-them technological innovation they are ill-equipped to judge. It is also a case study of how Google, by voluntarily implementing facial blurring in its relatively new but hugely popular Street View automated 360-degree panoramas, created norms in the minds of regulators that they are now eager to set in stone legally. By focusing on the technical details distinguishing Street View from more conventional photography formats, these regulators have managed to condemn an entire emerging field of photography to burdensome and invasive censorship requirements that are impossible to scale without Google-sized automation resources.
(This is perhaps a good place to mention that there is currently no Google Street View in Slovenia, and there likely won’t be for some time. That’s because Slovenia said it would require Google to keep the raw Street View images in Slovenia until they were blurred — no unblurred images were allowed to leave the country. Because the blurring makes use of Google’s servers, none of which are in Slovenia, Google respectfully declined to add Slovenia to its Street View program.)
Slovenia’s unfortunate regulatory turn came to a head because Slovenia happens to be home to Boštjan Burger, one of the pioneers of immersive photography. For almost two decades, Burger has been recognized inside Slovenia (and abroad) as an important cultural geographer, collaborating with museums and schools to create immersive exhibitions and courseware using his panoramas. Years before Google Street View, he was creating panoramas of everyday street scenes in Slovenia; in these scenes, he didn’t blur faces — his intention was to be a social documentarian, where these individuals are part of the story. He hosted this “open-air museum” on his personal website.
In July 2011, out of the blue, he was placed under investigation by Slovenia’s information commissioner. The (anonymous) complaint: He was making personally identifiable information available in his panoramas, because he hadn’t blurred faces. Never mind that his 11,000 panoramas had been published on his website for years without issue; pending the result of the investigation, Burger was told his panoramas were “most probably illegal” without facial blurring, and so he opted to take many of them offline.
In September 2011, the office of the information commissioner released a legal opinion which stated that conventional street photography engaged in social documentation did not need to have faces removed under Slovenian law, but that panoramas such as Google Street View did, because Street View’s purpose is as tool for getting a sense of the architecture of a place or for finding a location, not social documentation. When the purpose of a photograph is not social documentation, an individual’s right to privacy gains precedence.
This prompted more questions: Who decides what the purpose of a photograph is? Who decides what passes for social documentation? How can a photograph’s format determine its purpose? Burger asked these questions.
In October 2011, in response to Burger’s requests for clarification, the information commissioner released a directive (not online) which explained what kinds of panoramic photography can legally be published in Slovenia with faces unblurred. The directive decided there were just three different kinds of panoramas:
- Panoramas without identifiable people in them — these are not in contention.
- Panoramas of events such as concerts, protest marches, accidents — in these cases, the photographs have some news value, and so faces need not be blurred, for example if published on a news site.
- Photography of public spaces without newsworthy events, where the purpose is to show the architecture or scenery of a specific place — this kind is meant to contain Street View-type panoramas, and here people’s faces must be anonymized. The commissioner decided that a portion of Burger’s panoramas are of this kind. (There is no fourth kind, for social documentation in non-event situations, which is what street photographers most often pursue.) In addition, Burger may not send the original unblurred versions to others in Slovenia or abroad. He faces fines of up to 5,500 euros if he does not comply.
Burger told me that in face-to-face meetings at the commissioner’s office, he was told that this test of newsworthiness, although applied just to panoramic photography in the directive, was in fact valid for conventional photography as well. He then decided to comply with the directive for the long term, either by keeping his panoramas offline or by creatively masking faces on published panoramas so that individuals were not recognizable.
When news of Burger’s meeting spread through the Slovenian photographers’ community, it was immediately pointed out that this test of newsworthiness directly contradicted the legal opinion from Sept 2011, which had specifically upheld the legality of publishing street photography with faces unblurred. So Burger asked for a further clarification: He was told in yet another meeting that the September 2011 opinion defending street photography was only meant for “master photographers” and artists, pursuing creative work. Of course they would not need to blur images if they were exhibiting their work in a gallery or book, for example. In any case, there would be a further statement, he was told.
In it, the commissioner first references Wikipedia to define street photography and then apparently concludes that while this kind of photography has broad legal protection, the test for what constitutes street photography is also rather precise: (Translated via Google Translate, edited for clarity)
In the opinion of the commissioner, street photography is a photograph of the individual in special circumstances, situations, interactions with living and inanimate nature, or with other individuals. The point [of the photograph] is therefore an individual — a representation of an individual as an integral part of society. It is not so important where exactly a person is depicted. The focus is on an individual’s social position and the consequences resulting therefrom, and his/her interaction with other individuals and the environment, and expressed feelings. The location where the photo was taken is of secondary importance.
It is important to note here is that the commissioner is referring to photography in general. There is apparently a class of photographs — those which are neither street photographs nor news photographs — that do not deserve the same legal protection, for example because their purpose is depicting architecture or perhaps because they fail to be sufficiently artistic. In this class of photographs, whether they be flat or panoramic, the right to privacy of the individuals in them would appear to trump the right to free expression by the photographer. This amounts to an opinion with far wider consequences than the original judgment against 360-degree panoramas.
She also argues that 360-degree panoramas in particular — “spatial photography” in her parlance — cannot fall under the street photography rubric because in panoramas location is important, by her reckoning.
A key element of street photography is that the picture depicts an individual. If you show exactly where a photo was taken, the individual is possibly one element in the interpretation of images, but not its essential part. A photo where the presentation of a location is more important than the presentation of the individual as a rule does not fall within the definition of street photography.
We are also told that it is the photographer who is responsible for determining whether a photograph qualifies as street photography and thus can escape the removal of faces:
Clearly, whether a photo is street photography or not should be determined on a case by case basis. This is the primary task of the photographers themselves […] and of course the editors and curators.
The photographer does not escape liability however, should he/she make this determination incorrectly:
Liability for the lawful processing of individual images as street photography is with the photographer. […] Otherwise, there may be an inadmissible interference with personal rights, and this will be protected before the competent courts.
Finally, we are told why specifically all non-newsworthy panoramas must have faces removed. It is because panoramas make it clear where and when they were taken that individuals who find themselves in them must have greater privacy protection:
The essence of space photography (when not a depiction of an event) is a pictorial depiction of the environment surrounding the camera. The location of the photo is thus an intrinsic part of the spatial image. Also, because of the special technique used to produce spatial photographs, individuals cannot be the central motif — the finished product can even be disturbed by them. […] According to the commissioner, an individual whose recognizable image becomes an integral part of spatial images does not only enjoy the protection of personal rights, but also enjoys personal data protection. Spatial photography not only reveals his/her identity, but also reveals his/her personal data, for example a very precise location and possibly also a time when he/she was at this location. [… Before publishing a spatial image, a photographer needs to] obtain the individual’s prior consent, or in the absence of this consent, make the individual unrecognizable.
The argument that only panoramas can expose an individuals’ personal data is quite odd: Any photograph taken in front of a landmark automatically does the same for location. All digital photos contain EXIF timestamps that photo publishing sites automatically share. Mobile phone camera applications automatically add GPS-derived location- and time stamps when uploading to Twitter, Facebook or FourSquare. Will these kinds of photographs now also require the removal of faces? And besides, can street photography not also come with location and time data attached?
What next? Burger tells me that there will likely be a legal challenge to the decree, so that it will face a number of tests in progressively higher courts of law — and with any luck, in the European arena, which is usually good about slapping down ill-considered constraints on free expression. And on November 24, the Slovenian Association of Photographers and Journalists will tackle the issue in a public debate that is slated to feature both Burger and the information commissioner.
2011/12/2 Update: After the debate, the commissioner has now come out with a definitive decision. Burger writes (paraphrased somewhat):
The information commissioner of Slovenia has declared that 360-degree panoramas contain personal data. As a database it is under her jurisdiction. Such photography may not be published online unless faces are blurred.
Published 360-degree panoramas with unblurred faces are legal only if the publisher has a written permit of all the people in the panorama. The source images from which the panorama was stitched need to be unrecoverably deleted, e.g. destroyed.
What about other images published online? That is not data collection, but it doesn’t mean that the publisher is without responsibility. To be “safe”, the publisher (photographer, videographer) needs to get (ex-post) the permission of every individual documented in the image.
The decree is valid for all images taken on the territory of Republic of Slovenia and is retroactive (with no time limit in the past).