Photographers Grapple With ‘Informed Consent’ in Uprising
ARI PAUL
A new Photo Bill of Rights, inspired by the COVID-19 pandemic and the current uprising against police brutality, has caused fissures in the American photojournalism community and raised an important question about “informed consent” in photographing protesters.
The bill of rights is a lengthy, multifaceted, non–legally binding document that seeks to address gender and race bias within the image-taking industry, setting up policy guidelines to address issues of pay, safety, accountability and documenting abuse in the world of lens-based media workers (photographers, videographers, visual editors, etc.).
“The current system in place puts photographers at a disadvantage in the context of terms of service, payment and benefits, just to name a few,” said Kang-Chun Cheng, a Nairobi-based photographer who signed the statement:
I've had far too many instances of publications [and] editors trying to take advantage of me by not paying kill fees, disrespecting my time or simply not paying in full [or] paying in time.
But the bill’s language about how photographers should use “informed consent,” especially in the context of the current protests against police brutality, has caused a stir among journalists:
If and when applicable requires a full understanding of where and how that media may appear, as well as the potential consequences of publication. Stay tuned for a full chapter in “Beyond the Bill” that will detail more issues surrounding minimizing harm.
SAMPLE DIALOGUE: MINIMIZING HARM Applies to 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
DURING: Hi my name is [LENS-BASED WORKER], I’m an independent photographer working for [X] . Do you feel safe with me making your photo at this time? Listen for a confident yes or leave. Here is my business card with my information. Contact me if you have questions later or if you’d like to follow up. This may be published on my social channels and there is a possibility that a publication licenses it after the fact.
AFTER: Hi my name is [LENS-BASED WORKER], I’m an independent photographer working for [X] I made your photograph earlier while you were [X]. I’m a [type of lens-based worker] and my imagery typically appears [on my page or on a publication]. Do you feel comfortable with me documenting you today? Here’s my card—you can always opt out and I will honor that.
Photograph by Noah Berger of an undercover cop in Oakland.
At the latter organization, this has caused tensions. Photojournalist Noah Berger, who left the NPPA because it signed onto the bill of rights, said in a phone interview that it has long been understood that photographing people gathered in a public space for a protest has always been fair game, and that the language of the statement only furthers the right-wing smear that journalists are “fake news,” or an opposition movement.
“It says we’re standing with the protest,” he said of the NPPA signing the bill of rights. “It’s a very political position.”
The concern for consent come from reports that police can use photography to make arrests. For example, the Philadelphia Inquirer ( 6/17/20) reported that federal authorities used Instagram photos to start a social media investigation to find and arrest a protester who had allegedly set a police car on fire in Philadelphia. Stories like this have spread worry that press and social media photos of protesters (even wearing masks) could aid law enforcement.
After this image by photographer Richard Grant went viral, the police officer's boss wanted the father arrested for child endangerment (Long Beach Post, 6/23/20).
Even photographs first thought to aid protesters could be turned against them. For example, the Long Beach Post ( 6/23/20) reported that the viral photo of a police officer pointing a weapon at a child on an adult’s shoulders has been turned against the adult protester; the police want the protester to be charged with child endangerment.
“Informed consent” is meant to mitigate this problem, but it runs contrary to how mainstream photographers normally operate. It’s not always practical to stop in the middle of a tense situation and chat with a demonstrator. In crisis journalism, photographers are often making split-second decisions, and are also working to protect themselves.
If it is not feasible to get consent from everyone pictured, if media can’t full show the faces and bodies in the streets against the police, how else are people to know how historic, enormous and urgent these protests are? Isn’t it in the protesters’ interest to visually show their “people power”?
Photograph by Zach Roberts of a protester confronting the pro-fascist march in Charlottesville, Virginia.
Zach Roberts, a photojournalist and co-host of the Around the Lens podcast, told FAIR in an email:
The language about informed consent in the Photo Bill of Rights toolkit is a really great starting point of a conversation that photojournalists need to have amongst themselves. We need to start realizing that the subjects of our photos, the ones we make money off of using their imagery for journalism, are potentially put at risk by the photos that we take.
I know many photojournalists will argue that they're in public and thus can have their photo taken; I wouldn't argue against that. But that said, we live in a world where activists, the people I primarily take photos of, are at great risk from police, and often from groups that want to stop those people from expressing their right to free speech. I cover far-right extremism quite often in my work, and I know through my research that photos, often from photojournalists, are used by the far right to find out who are the activists confronting them. When they do find it out, they often go to their homes, assault them or worse.
Whether or not the language in the toolkit is something we use every single time, it is, again, something that photographers who haven't been working in this field for too long can look to for guidance on what to ask and what to say to people. Personally, I wouldn't necessarily give people the long-term out of opting out of having their photo used, as once I publish my photos it's out of my hands for the most part, and it's difficult to explain that to people.
Berger is right that mainstream journalism isn’t a partisan project, and the profession frowns upon letting subjects of a story dictate how they are to be covered. But one governing philosophy of journalism is that reporters are charged with comforting the afflicted and afflicting the comfortable, and, above all, giving a voice to the voiceless.
Photojournalists—in war, in uprisings, in civil conflict—are not expected to take sides, but they should be expected to recognize the power dynamics between parties. The sortie dropping bombs in an urban area and the civilian fleeing the carnage are not two equal sides in a conflict. A big-city police department has endless finances to craft narratives to its liking, while the protester on the street does not; journalists should be cognizant of that glaring power imbalance, and should apply standards to those parties with that imbalance in mind.
There’s not an easy answer about what to do. But the language the Bill of Rights uses highlights that we are operating in different times, where photojournalists’ work can be used by instruments of government power to suppress dissent. The conversation should continue.
Featured image: The US attorney in Philadelphia used this and other photographs to indict a protester for allegedly setting fire to a police car.
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