Photo Bill of Rights’ consent recommendation hinders fundamental journalistic rights

By Mark Loundy

(7/5/21 – Open video letter to the NPPA Board: https://youtu.be/05G04Ln-wF8)

When I first heard about the Photo Bill of Rights (PBoR) in early 2020, I was excited about the strong statements it made about financial, safety, and inclusion issues relating to photographers. It said things that I had been calling for over many years in my Common Cents Column in News Photographer magazine and in other writings. I immediately and enthusiastically added my name to the list of signatories.

About a day later, I was directed to a section of the document’s so-called toolkit. Deep within that section, nearly at the bottom of the page, is a segment that poisons the entire work. It calls for photographers to seek consent from people in “fast-paced situations like protests, in situations that are rapidly evolving, or situations unbalanced in power for the source like an immigration case or a criminal proceeding.” This cuts to the fundamentals of what it means to be a visual journalist. So I withdrew my support.

The PBoR section starts with the following: ”Informed consent if and when applicable requires a full understanding of where and how that media may appear, as well as the potential consequences of publication.” The problem is that by bringing public-place consent to the foreground of discourse, it implies that this is a common or ordinary situation and one that is not already approached humanely by the vast majority of journalists. It is very rarely “applicable.”

Not only is it not a general problem, raising the topic in public creates a safety and access problem for photojournalists. Anybody who would betray somebody that they photographed in such a way would not be deterred from doing so by — or even likely read — the PBoR.

“The NPPA has fought for generations to protect the legal concept of ‘implied consent’ for photographing people who choose to appear in public. It is fundamental to the profession.”

While the intent of the section is laudable, it is unacceptable to establish any “best practice” that implies, in any way, that photojournalists do not have the absolute right to photograph anybody who chooses to put themselves in public view. The NPPA has fought for generations to protect the legal concept of “implied consent” for photographing people who choose to appear in public. It is fundamental to the profession.

Journalists have traditionally been the defenders of the underdog and those who expose the wrongdoings of the privileged. There is no need to codify that in a way that implies that people, particularly those who have made a deliberate point of putting themselves in the public eye, have a say in whether they should be photographed. In a sad reality where people from all points of the political spectrum dislike and distrust journalists, the section endangers professionals who are working in already dangerous and unpredictable environments.

Skilled journalists, particularly photojournalists, have always, with notable exceptions, exercised empathy on the job. The vast majority of us will always evaluate our relationship with people and will choose to do no harm, or if harm is unavoidable, to do so with the person’s informed cooperation. This is something that has been and should be a professional practice. But to codify it is to signal to a public that sees what it wants, that if they are not asked for permission, then the journalist is committing malpractice. That the problematic section in the PBoR is “only” in a supporting “toolkit” is irrelevant.

The argument that we should not “throw out” the PBoR because of one small area of an ancillary section is specious. If you were given your favorite cake, but one piece contained cyanide, would you eat the cake because most of it was so good, or would you throw it out and bake another one without cyanide? There is nothing unique or perishable about the PBoR contents. If the objectionable portion cannot be excised (not softened, not rewritten,) then another, similar, document can be created that does not include it.

Indeed, the NPPA should have produced such a document decades ago. But it had to be dragged into the reality of freelance photography and the needs of its members. Far from being a leader, and independently authoring such a work, it joined with groups whose interests might not fully align with journalistic practices and principles.

But it is not too late for the NPPA to step up and take ownership of the very important issues and vital statements made in the PBoR. If the groups controlling the PBoR cannot be persuaded to remove the problem language, the NPPA should withdraw its authorship and create a similar document, containing the same support for the rights of photographers. But it should immediately and publicly disavow the document in its current form.

@MarkLoundy on Twitter

Resolution to remove NPPA support from the PBoR

Companion resolution to create a new document.

Resolution Co-sponsor form (NPPA members only)