Enter the GenDaPro: Just how serious is GDPR for photographers?
No doubt the worthy pen pushers of Brussels are very proud of their General Data Protection Regulation — GDPR for short — and without question, it will address many ills, including unauthorised collection and sale of personal data. But with all sledgehammers, the odd nut gets cracked along the way. I'm thinking of you and me. Nuts all.
And don’t you just hate the fuss? Every time I look at a news site I see those hateful initials: G, D, P, R, and I get goose pimples of premonition. It is a sign of even worse things to come, I fear.
Remember what they said about the GenDaPro: "First they came for the spammers, and I wasn't a spammer so I did nothing. Then they came for the collectors of data and I wasn't a data of collector, so I did nothing. Then they came for me and there was no one left to speak for me"
Unfortunately, this GDPR thingy could be only the tip of the iceberg and the legislators won’t rest until everyone is so stitched up that they are frightened to make a single move, least of all take a photograph. The panic which ensued on May 25, GDPR-day, is evidence enough of this.
But what of photographers? Does GDPR affect the way in which photographers will be able to work in the future? In my report of the Bièvres International Photo Fair, I mentioned that there seems to be a new prickliness among the general public, at least in France, keen to exercise their right to be unpictured. In time, I suspect, the only willing subjects will be cats, docile dogs, flowers and general landscapes. Any scene incorporating a human being of any flavour is likely to be a no-go area.
If you think I’m overreacting, please read an alarming article by Hendrik Wieduwilt, an amateur photographer, journalist and legal affairs correspondent based in Berlin. In the aftermath of the implementation of GDPR, he says, “Hundreds of bloggers have taken down their sites, fearful of the possibility of serious fines. Internet light bulbs have stopped working properly. And photographers are being targeted, too.”
It can only get worse:
“See, the GDPR sees photography as something even the first Terminator could do: processing personal data. Yes, your dreamy picture of that girl in the sunflower field is the “collection and sharing of personal data” in the eyes of a data protection officer. Many things in a photo are personal data: her face, the location, the time and date, and everything that is tied to her identity.
“The legal consequence: you need to provide some kind of justification to take that picture and to put it on your hard disk or — god forbid — to share it on Instagram. If you’re a pro, you have a model release. If you’re just a friend, it’s out of the scope of the GDPR (again, “personal or household activity”). But an enthusiast sits uncomfortably in the middle.”
And street photography is also right in the middle of our area of concern:
“Street photography especially becomes a legal nightmare. You cannot get consent before you take the shot because that would usually destroy the moment. According to the data protection law, you’re not allowed to only ask for it afterward. If you take a picture as an event photographer, you might argue that taking pictures of visitors at a conference is 'necessary for the purposes of the legitimate interests' (Art. 6 lit f GDPR). You don’t need consent then.
“But can you do that if you shoot that amazing shot of an elegant business guy in a light cone on the street? Probably not. And you certainly cannot do it when a child is in your picture. That 'legitimate interests'-argument does not apply 'where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child'.
Has all this cheered you up? It has me. I’m wondering what point there is in owning a camera in the future. Eventually, it will be mandatory to avoid allowing any sentient being into the path of one’s lens. Future generations will look back on the naughties and the teens as a period of utopian freedom of expression. It doesn't seem like that in 2018, but things can only get worse.
It's going to be all cats and dogs and the odd moo cow, all uncomplaining creatures that love having their pictures taken. And flowers, castles, trees, (deserted) streets, can all add flavour to our endeavours. But whatever you do, don't take a picture of a real person.
If you really want a fright, read Hendrik's article here. What do you think? Are we all skating on the thinnest of ice every time we set forth into the street with our M3s?
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