Anyone who has ever played with a camera knows it is always better to take a picture when the subject is absent minded. This point is so self-evident that people actually fake “no-look” poses once they realize you are taking a picture of them. Ask any wedding photographer whether this is true and you will get an affirmative answer. For wedding photography, this is not a problem. People actually request that you take pictures of them. The issue however is with street photography. Those random moments of what it means to be Ghanaian which screams out to the amateur photographer in you. Like when you see a kayayo balancing a 5 foot tall box on her head. Or a Kente weaver busily tugging away at his tools. Do you take out your iPhone or Canon cameras and take a picture without asking for permission because unaware pictures always come out better or do you ask for permission and in the process, lose the genuine portrait you could have captured in that moment?
This conundrum faced by street photographers in Ghana raise a question bothering on the privacy of the subject of the image. Everyone is entitled to privacy as per common sense and most importantly, the 1992 Constitution.
Privacy and a Reasonable Expectation of it.
An individual’s right to privacy is an inherent one without which the said person cannot fully function in society. All persons are entitled to keep to themselves and protect whatsoever part of their identity is necessary to them for such safe keeping away from the prying eyes of others. The right to privacy ensures that this is possible. In an increasingly digitized world, the right to privacy is a bulwark against the every extending and reaching hands of the government as well as that of inquisitive persons into the personal space of individuals.
Article 18(2) of the 1992 constitution unambiguously provides the following on the right to privacy: No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others.
The scope of this clause of Article 18 of the 1992 constitution has not been fully interrogated by the courts of this republic. There is however a 2018 Supreme Court judgment [Raphael Cubagee v. Michael Yeboah Asare] which was on an individual’s right to not be secretly recorded during a phone conversation. The Supreme Court’s holding which was to the effect that such a recording was unconstitutional was predictable given this part of the clause: correspondence or communication (the crux of the case was actually on whether such a secretly recorded conversation was admissible). That then still leaves room for an answer to the question: May I take your picture on the streets without asking for permission?
There have been a number of cases in other common law jurisdictions on this subject which might be of persuasive authority before the courts. The first of such is Murray v. Express Newspaper. The claimants in this case were the parents of a child whose pictures had been clandestinely taken by a photographer while the family was headed to a café (the mother of the claimant is JK Rowling). The pictures were subsequently published by a newspaper which later settled out of court with the claimant. The agency however refused to settle and the matter went to trial with the agency getting judgment in its favor. Upon appeal however, it was held that there was a reasonable expectation of privacy by a family heading to a café. This reasonable expectation of privacy was to be built on the following: attributes of the claimant, the nature of the activity in which he was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information had come into the hands of the publisher. From the facts and the standard set, the court allowed the appeal because per the circumstances, an expedition to a cafe was at least arguably part of each member of the family’s recreation time intended to be enjoyed by him and such that publicity of it was intrusive and would adversely affect such activities in the future; that, accordingly, it was at least arguable that the claimant had a reasonable expectation of privacy.
In the case of Campbell v. MGN, the court held that in a balance between a newspaper’s freedom of expression and an individual’s right to privacy, the right to privacy trumps in some cases. Such cases were primarily those that had to do with a private person’s life which was not of a political nature. Here, Naomi Campbell, the famous model, had stated some mistruths about her life which the newspaper disproved in print and pictures. Of importance in this case was that the information which was captured with the camera, was one which was said to be offensive to a reasonable person. This information had to be with Naomi Campbell walking out of a support group for drug addicts. The test put forth was as follows: that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities.
It can thus be said that the UK position is a summation of two tests. One which looks at whether a reasonable expectation of privacy is to be expected and the other which is based on not offending the sensibilities of a reasonable person. As such, a random picture of a kayayo at Makola can be said to not be a breach of privacy.
The First Amendment protects Freedom of Expression
In the United States of America however, the position of the law has been somewhat remarkably different. In a New York Supreme Court case, Nussenzweig v. diCorcia, it was held that the defendant’s act of taking a picture of the plaintiff who was a Jewish man was an act in manifestation of the former’s freedom of expression which is protected under the first amendment. As such, the argument of the plaintiff that his religious rights were being tampered with as his faith did not permit for a reproduction of his image in that manner, was not a tenable argument. It is instructive to note an affidavit provided by a a curator at a Photography Museum on the place of seeking permission before taking a subject’s picture in street photography: It would be highly impractical-indeed, in the overwhelming majority of cases simply impossible-for the photographer to obtain such permission. This according to the curator would have burdened photographers and prevented the world from appreciating the contributions of street photography to modern art. The position of the law in the USA thus far can be said that to be that street photography is protected under the first amendment (of course so long as you remain within the confines of “street” and do not trespass onto private property).
The Ethical Thing to Do?
As Peter Galassi, the Chief Curator of Photography of The Museum of Modern Art stated, street photography, in the USA, has not been burdened with the need to get the permission of the subject as that takes away some luster from this genre of photography. But in a country and continent where there is a history of images of black bodies being used in poverty porn campaigns around the world, people do have enough reason to be worried about pictures they did not consent to. Intentions might matter more here but since even the devil does not know what is in the heart of a person, it becomes a tricky situation. So if your intention is good, your best bet is to not get apprehended taking a picture at Chorkor or Agbogbloshie. Or better still, have money with you so you can pay off your unconsented subjects while we wait for the courts of the land to one day give a definite ruling on the position of Ghanaian law in relation to Street Photography.