On the 25th of May 2018, GDPR (General Data Protection Regulation) will introduce a data protection law framework across the EU that aims to put citizens back in control of their personal data. This doesn’t sound like it will have much of an impact on freelancers, and content creators, until we dissect the question, ‘what is personal data?’. Let’s break it down.
Personal data comprises of any information relating to an identified or identifiable natural person, including name, contact details, and photographs. The GDPR gives people specific rights in relation to their personal information and places certain obligations on those collecting or handling other people’s personal information. Those who are collecting other people’s personal information (including photographs) can only do it if they have a “legal basis” for doing so. The legal basis that most photographers would normally rely upon is the consent of the person being photographed.
How does this impact individual photographers who, via their artwork (including photography), use the data of other individuals, particularly where the persons being photographed have not provided their consent? For instance, a photographer takes a photo of an individual on the street or snaps a shot of a crowd. Does the photographer have to ask each individual in the photo to sign a release form?
There is apprehension that GDPR may compel street photographers to implement a written form of consent when it comes to photographing individuals as well as detailed information about how the image will be used and where it will be published. However, it is expected that the UK law implementing the GDPR (such UK law has not yet been passed by Parliament) will contain certain exemptions/derogations to the consent rule under the GDPR. It is likely there will be an exemption to the consent rule for personal data collected for the purposes of "journalism, literature, and art". However, as the UK data protection law has not yet been approved and adopted by Parliament, we can't yet confirm what those exemptions will be.
Thus, there is some ambiguity at the moment as to whether there will be an exception to the need for a consent form, for the purpose of street photography. There should be further clarity on this topic in the coming months, once the UK Data Protection Bill is approved by Parliament.
How to deal with this new law:
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Know where all of your clients and subjects’ data comes from.
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Do not collect or store people’s information manually - use business management software and if needed, an email marketing system.
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Know that people have the right to remove their own data if they wish to.
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Always be clear to the person on how you intend on using their data.
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Do not add clients to any email or marketing lists without their permission.
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Have a privacy policy on your website.
Know your rights as a photographer:
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Outside and in public places, you can legally take photographs of anything.
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Equipment such as flashguns and tripods are fine to use so long as they are not obstructing pathways, doorways etc...
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The police will not bother you when you are shooting unless you are already under investigation.
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Deal with any security guards that approach you politely - they don’t always know the law.
