Photographing people and places: ethics and the law

A camera is a powerful tool, and photographs can affect the people in them long after they are taken: a candid picture can embarrass, endanger or exploit someone; a portrait can honour them; a photograph of a sacred place can offend a community; and a picture you made can be copied and used by others without your permission. Photographers therefore need to understand both the ethics of photographing people and places and the basic law that governs taking, publishing and owning photographs. This lesson covers consent and respect, photographing children and vulnerable people, cultural sensitivity, the law of photography in public and private places, privacy and publicity rights, model and property releases, copyright in your own images, drones, and practical habits that keep you on the right side of both ethics and law.

Ethics before law

Many things that are legal are still wrong, and good photographers hold themselves to a higher standard than the law requires. A few principles guide ethical practice:

• Respect: treat the people you photograph as people, not props. Consider how they would feel seeing the picture, and how it represents them.
• Consent: ask when you can, especially for close portraits and when people are in vulnerable situations. When candid photography is the point, as in street photography, be open about what you did if someone asks, and delete the picture if they object, unless there is a strong public interest.
• Do no harm: avoid pictures that could expose someone to danger, ridicule, discrimination or legal trouble, such as identifying a refugee, a survivor of violence or a person at a medical appointment.
• Fair representation: avoid images that reinforce stereotypes, exoticize or reduce people to their poverty, disability or difference. Photograph people with agency and context.
• Honesty: caption truthfully, and do not stage or alter documentary images while presenting them as candid (Lesson 10, VIS-101).

Power matters. A photographer with an expensive camera photographing people who are poor, sick or in crisis holds power over how they will be seen. Ask whether the picture serves them, the public, or only the photographer's portfolio.

Children and vulnerable people

Children cannot give meaningful consent; their parents or guardians can. Ask before photographing other people's children, and especially before publishing pictures in which they can be identified. Schools, camps, sports clubs and childcare centres usually have written policies requiring permission. Never photograph children in states of undress or in ways that could be misused, and be cautious about sharing images that reveal a child's name, school or location. Similar care applies to people in hospitals, care homes, shelters and prisons, people in mental health crises, and people who are unable to understand what a photograph might be used for.

Cultural sensitivity

Some communities, places and ceremonies have rules or expectations about photography. Many Indigenous communities ask that certain ceremonies, regalia or sacred sites not be photographed, or only with permission; some religious services and places of worship prohibit photography; some people believe photographs of the dead should not be shown. Learn the expectations before you go, ask a local guide or community member, and follow posted rules. Approaching a community as a guest, and returning pictures to the people in them, builds the trust that good documentary work depends on.

Photographing in public places

In Canada, it is generally lawful to photograph people and places that are visible from a public place, such as a street, park or beach, without permission, because people have a reduced expectation of privacy in public. There are important qualifications. The Criminal Code's voyeurism offence (section 162) prohibits surreptitiously observing or recording people in circumstances where they have a reasonable expectation of privacy, such as in washrooms or changing rooms, or recording intimate images. Several provinces (British Columbia, Manitoba, Saskatchewan, and Newfoundland and Labrador) have privacy statutes that create a right to sue for violation of privacy, and Ontario courts have recognized privacy torts such as intrusion upon seclusion (Jones v. Tsige, 2012). Quebec is the strictest: under the Quebec Charter and Civil Code, publishing an identifiable image of a person without consent can violate their right to their image, as the Supreme Court of Canada held in Aubry v. Éditions Vice-Versa (1998), unless there is a sufficient public interest or the person is incidental to a public scene.

Being in a public place does not mean anything goes. Following someone to photograph them, photographing through windows into homes, or harassing people for pictures can break laws on harassment, stalking and trespass regardless of where the camera is. And security staff or police may ask you to stop or move; in most cases they cannot lawfully demand that you delete images or hand over your camera without a warrant or legal authority, but arguing in the moment is rarely wise. Calmly stating that you are photographing a public place, and leaving if asked, avoids most confrontations.

Private property and restricted places

On private property, including shopping malls, stadiums, concert venues, museums and private events, the owner can set conditions of entry, including banning photography or professional cameras, and can ask you to leave if you do not comply; refusing to leave can become trespass. Ticket terms often restrict photography and its commercial use. Photographing a private building from a public street is generally allowed, but some sites, such as military installations, certain critical infrastructure and areas inside airport security, are restricted by law, and photographing them can attract questions or worse. When in doubt, ask permission and get it in writing for professional work.

Publishing, privacy and publicity

The law distinguishes between taking a photograph and using it. Editorial use, such as news, documentary, education, commentary and art, is generally given the widest latitude. Commercial use, using a person's likeness to advertise or endorse a product, service or brand, requires the person's permission.

In Canada, the tort of appropriation of personality, recognized in common-law provinces, and the provincial privacy statutes give people a claim when their likeness is used for commercial advantage without consent; in Quebec, the right to one's image applies more broadly, as noted above. Canadian privacy law (PIPEDA and provincial equivalents) can also apply when organizations collect and use photos of identifiable people in commercial activity.

Model and property releases

A model release is a signed agreement in which the person photographed (or a parent or guardian for a minor) gives permission for their image to be used in specified ways. For commercial work, stock photography and advertising, a release from every identifiable person is essential, and stock agencies will not accept images without them. A good release identifies the photographer and the person, describes the shoot, states the permitted uses (and any restrictions, such as no sensitive uses), mentions any payment, and is signed and dated. Apps make releases easy to complete on location. A property release is similar, for recognizable private property, such as the interior of a home or a distinctive building, used commercially. Releases are rarely required for editorial use, but they can still be good practice and good ethics.

Copyright in your photographs

Copyright protects original works, including photographs, from the moment they are created, with no registration required. It gives the owner the exclusive right to copy, publish, distribute and adapt the work, and to authorize others to do so.

Under Canada's Copyright Act, the photographer is generally the first owner of copyright in their photographs. Since 2012, this is true even for commissioned photographs such as wedding and portrait photography, although an individual who commissions a portrait for personal purposes may use it for private, non-commercial purposes unless the parties agree otherwise. An employee's photographs taken in the course of employment belong to the employer unless agreed otherwise. Copyright generally lasts for the photographer's life plus 70 years. Canada also recognizes moral rights: the right to be credited and to object to distortions of the work that harm the author's reputation, which can be waived but not sold. Fair dealing allows limited uses for purposes such as research, private study, education, criticism, review and news reporting.

In practice, photographers protect their work by including copyright and contact information in metadata (Lesson 10), using clear licences and contracts that specify which uses a client may make, keeping original raw files as proof of authorship, and acting on unauthorized use with a request, a takedown notice to the platform, or an invoice for the use. Creative Commons licences let photographers who wish to share work set conditions such as credit and non-commercial use. Equally, respect other people's copyright: artworks, murals and sculptures in your pictures, and other photographers' images used as references or in composites, may be protected.

Drones

In Canada, drones (remotely piloted aircraft systems) from 250 g to 25 kg are regulated by Transport Canada: pilots must register the drone, hold a basic or advanced pilot certificate depending on where they fly, keep the drone in visual line of sight, generally stay below 122 m (400 ft), and stay clear of airports, people and emergency operations according to the certificate's rules. Privacy laws apply to aerial photography too, and many parks and municipalities restrict drone flights.

Practical habits

A few habits keep photographers safe, respectful and lawful:

• Carry a few printed or app-based model releases and use them whenever a picture might be used commercially.
• Ask, smile and explain. Most conflicts start with secrecy; most permissions follow a friendly explanation.
• Know the local rules before travelling, especially for drones, sacred sites and photography of officials or government buildings.
• Keep personal data out of shared images when it could cause harm: location metadata, children's names and schools, licence plates in sensitive contexts.
• Put your name, copyright notice and contact details in your camera's metadata settings so every picture carries them.
• When unsure about a legal question with real consequences, especially for commercial projects, consult a lawyer or a professional association.