Photographing people in public: what is allowed?

You're standing in a square, someone walks straight into the light and you press the shutter. A second later, they're looking right at you. And there's the question almost everyone who takes photographs on the street asks sooner or later: is photographing people in public allowed?

The short answer: in the Netherlands, you're generally allowed to photograph people in public spaces. The long answer is more interesting, because what you do with that photo afterwards is another matter.

I'm writing this as a street photographer, not a legal expert. That's not modesty. For the legal explanations, I've worked with someone who is. More on that later. Read this article as an introduction to the rules, not as legal advice.

I won't be covering shutter speeds or composition here. For those, I've written my street photography tips and an article on the best settings for street photography.

• Taking photographs in public spaces
• Taking a photo is different from publishing it
• Portrait rights and reasonable interests
• Recognisable or not
• GDPR and street photography
• Advertising and commercial use
• Stations, shopping centres and museums
• Children
• When someone asks you to delete a photo
• What about Belgium
• The law is not the whole story
• Before you publish
• Read more in De Wet van de Straat

Taking photographs in public spaces

A street, a park, a market or a square: these are public spaces. In the Netherlands, you generally don't need permission to photograph someone there. There's no blanket rule saying you have to ask before pressing the shutter.

That surprises a lot of people. I often find that new street photographers assume they're doing something they're not really allowed to do. That they're always pushing their luck a little, as though someone might tap them on the shoulder at any moment. That feeling is mostly in their heads. Taking the photo is rarely the problem.

Still, the word "generally" is there for a reason. Different rules apply in some places, which I'll get to shortly. And if you keep following someone or become intrusive, that's something other than street photography. At that point, it's about your behaviour rather than a photo.

People notice how you take photographs, too. Someone standing openly among people with a small camera gets a different response from someone hiding behind a parked car with a long lens. I can't promise you that makes any legal difference. On the street, you'll notice it straight away.

If you'd like to know a bit more about the genre first, my page What is street photography? explains what it's about.

Taking a photo is different from publishing it

For me, this is the most important distinction in the whole discussion. Taking a photo and publishing one are two different things in law.

As long as a photo stays on your memory card or in your archive, there's little to worry about. It's when you show it, on Instagram, on your website, in an exhibition or in a book, that the rules on portrait rights and privacy really come into play.

So the decision usually comes later, at home in front of your computer, when you're making your selection. Which photo will you show, where, and with what story alongside it?

I find that quite reassuring. On the street, you can concentrate on looking. Thinking about publication can wait until you're sitting down with a coffee and a screen full of photos, most of which you'll throw away anyway.

That applies to old work, too. A photo you took years ago and only publish now is being shown in today's context. It calls for the same questions as a photo from last week.

Portrait rights and reasonable interests

Portrait rights are set out in the Dutch Copyright Act. A portrait doesn't just mean a carefully posed studio photograph. The term is generally interpreted broadly: an image in which someone is recognisable. A street photo showing someone's face can easily fall within that definition. Sometimes you can recognise someone without seeing their face, from their posture, a coat or the place where they always stand.

Article 21 is relevant to street photography. It covers portraits that weren't commissioned by the person depicted. That's exactly what a street photo is: nobody asked you to take it.

The main rule in Article 21 works in photographers' favour. You may publish such a portrait unless the person depicted has a reasonable interest in opposing publication. So you don't need permission beforehand. You do, however, have to take the interests of the person in your photo into account.

What counts as a reasonable interest? A few examples that often come up:

• Privacy. Someone is on the street, but in a clearly private moment. Think of grief, or someone who visibly doesn't want to be seen.
• A hurtful or mocking context. An innocent photo can become a problem because of its caption, title or where you publish it.
• A commercial interest for well-known people. Someone who earns money from their face may object if someone else uses it for their own gain.

It makes sense to me that context carries so much weight. A photo of someone asleep on a bench is quite different in a series about the city from the same photo under a funny headline on social media. The photo hasn't changed. What you're saying with it has.

Ultimately, each case has to be weighed individually. If there's a real dispute, a judge decides. So I can't give you a list of photos that are always allowed or never allowed. Anyone who promises that is making it sound simpler than it is.

Recognisable or not

A lot depends on whether someone is recognisable. If they aren't recognisable in your photo, portrait rights play a much smaller role according to the usual interpretation. Think of someone's back in a busy shopping street, a silhouette against a bright wall or a hand pushing a door open.

I don't see that as a trick to get around the rules. People whose faces you can't see are interesting subjects in their own right. It's even one of the ideas I suggest for anyone who wants to create a series. A photo without a face leaves more to the viewer. That often works better than you might think.

But being recognisable involves more than a face. A distinctive coat or a regular spot at the market may still make someone instantly recognisable to neighbours and acquaintances. Someone looking away doesn't automatically make a photo anonymous.

GDPR and street photography

Then there's GDPR, the privacy legislation that has made quite a few photographers nervous.

Under GDPR, a photo in which someone is recognisable counts as personal data. That sounds alarming. Taken literally, it might seem you'd need to keep a whole set of records for every street photo.

Fortunately, that's not how it works in practice. GDPR has exemptions. Photos for purely personal use generally fall outside its scope. Article 43 of the Dutch GDPR Implementation Act also provides an exemption for journalistic, artistic and literary purposes. Street photography that you make and show as photography, as your work, can fall within that exemption in many cases.

"In many cases" is there deliberately. Context matters here, too. A series of street photos on your website is different from a folder of faces you're keeping of people in your neighbourhood. If you're unsure whether your use still falls within that exemption, have someone who knows the subject check it.

One thing that helps: don't add names, addresses or tags identifying recognisable people you've come across on the street. A photo is one thing. A photo with a name underneath can quickly become something else.

Advertising and commercial use

This is much more straightforward. If you want to use a recognisable person in advertising, you need permission. Work on that basis.

In practice, you record that permission in a model release: a short document in which someone confirms that you may use the photo for that purpose. Without one, you can't simply put a street photo under a brand name or a special offer.

The boundary between artistic and commercial use is less clear than you might like. Think of selling prints, or a photobook intended to make money. Those are questions for a legal expert. A photographer's blog isn't the place for those answers.

Stations, shopping centres and museums

Not everywhere that feels public is a public space. A station, shopping centre, museum or café belongs to someone. The owner can set house rules, including a ban on photography or conditions for taking photos.

So photography isn't banned everywhere indoors, but the rules that apply on the street don't automatically apply there. A security guard asking you to stop may be relying on those house rules. Outside on the pavement, it's a different matter.

Often, the rules are on a sign by the entrance. If there's nothing there and you're unsure, you can ask. That takes less time than an argument afterwards.

Children

The Netherlands has no separate law on photographing children in public. The rules on taking and publishing photos you've read above generally apply to them too.

It does call for extra care. A child can't fully understand what it means to appear online. Understandably, parents often react more strongly than an adult making a decision for themselves.

In my article on ethics in street photography, I explain that I now photograph children too, if I see a story there. That's a personal choice, not a rule I want to impose on you. Particularly with children, I think it's sensible to take an extra critical look at what a photo says before publishing it.

When someone asks you to delete a photo

It happens sooner or later: someone sees you taking photographs and wants you to delete the photo.

As far as I know, if you took it in a public space, you're under no legal obligation to delete it there and then. You're allowed to keep it. On a human level, deleting it is often sensible. A photo is rarely important enough to be worth an argument on the pavement. There'll be another moment tomorrow.

I've written before about a man who demanded that someone on a photo walk delete a photo NOW. He even called 112, despite not being recognisable in the photo. What has stayed with me most: if he'd asked politely, that photo would have been gone within a minute.

That might be the most important lesson I took from it. Being allowed to do something doesn't mean you have to insist on it. A polite request is different from a demand. It's fair enough to respond differently.

What about Belgium

If you're taking photographs in Antwerp or elsewhere in Belgium, the rules are different. The Belgian right to one's image is stricter than Dutch portrait rights.

In Belgium, you generally need permission to publish a photo in which someone is recognisable. There are exceptions. Someone who forms part of a crowd often falls within one, as does someone who happens to be in the frame without being the subject of your photo. You can also usually show public figures acting in their public role without asking permission first.

That's a considerable difference for street photography. A photo with one person clearly as its subject calls for more caution when publishing in Belgium. If you're going there to take photographs, perhaps during the street photography workshop in Antwerp, it's useful to know that distinction.

Other countries have their own rules too. If you join REFRESH in Paris or London, you'll be taking photographs under different laws from those at home. I won't get into those here, or this article will turn into a book.

The law is not the whole story

I think it's important to know what's allowed. Knowing what I want to do myself matters at least as much. There are photos that are legally fine which I still choose not to show.

My own rules are sometimes stricter than the law, and sometimes just practical. People putting food in their mouths, for example. All allowed. I've just never thought it made a good photo.

That friction between what's allowed and what feels right to you also comes up in the battle called street photography. Nobody can decide your ethics for you, not even a law book. You develop them by taking photographs, having doubts and talking about it.

That's why this subject comes up in every street photography workshop. As a conversation while we're walking, without a lesson on legal provisions. If you'd rather talk it through with just me, we can do that in a one-to-one workshop too.

Before you publish

Since most of these decisions come when you publish, it helps to set aside a moment for them. You have time while you're making your selection.

Before I put a street photo online, I ask myself a few questions. Is anyone recognisable? What does the caption say, and could it cause offence? Where will the photo appear, alongside other work in a series or on its own on social media, where anyone can put their own spin on it?

And the most important one: would I mind appearing online like this myself? That's not a legal test. It does help. Usually, you know the answer before you've finished asking the question.

A checklist like that doesn't make you a legal expert, and it guarantees nothing. It does help you make a conscious choice about what you publish. Not every technically successful photo needs to go online. That often makes for a stronger selection too, but that's another article.

Read more in De Wet van de Straat

Everything above is a simplification. Deliberately. The law is full of nuances, exceptions and court rulings that won't fit into a blog post.

That's why I wrote my Dutch-language ebook De Wet van de Straat, together with legal expert mr. Charlotte Meindersma. It's about what is and isn't allowed on the street. We discuss the rules using my own photos. That makes it much more concrete than a list of legal provisions: you see the photo and read about the legal questions it raises.

If you regularly take photographs on the street and show your work, I really do recommend the ebook. It saves a lot of uncertainty, both on the street and afterwards at your computer.

If you have a specific problem, a claim or a letter from a lawyer, speak to a legal expert. This article and the ebook are no substitute for individual legal advice.

Would you rather talk about these questions with a camera in your hand? Have a look at my street photography workshops. And if you'd like to know exactly where you stand first: read De Wet van de Straat.