WAF Newsletter - In Practice - February 2021

In Practice

Paul Hyett, 16 February 2021

It was 3.20 in the afternoon on Saturday 6 February, writes Paul Hyett. An architect friend of mine had been standing some 20 minutes or so at the junction of a street in north London, opposite a Waitrose supermarket. Covid rules restrict the numbers of entrants at this time, so his wife had entered the store alone.

As he waited that cold afternoon, my friend was struck by the poverty of the architecture of this particular store, especially in the context of its inadequacies as a ‘corner building’. One of his past tutors, Peter Cook, would regularly run great student projects for corner sites which fascinated him back in the 1970s, and the challenge of designing a corner well had ever since remained a preoccupation, wherever the site and whatever the building scale or genre. The store was an essay in how not to do it.

Eventually, a police car drew up at the pavement edge and my architect friend was questioned by two officers. There were no sirens or flashing blue lights, and the questions were very polite, but he was a little embarrassed as passers-by paused to watch the ongoing interrogation. He was first asked if he was feeling OK. Asking why they were concerned, he was astonished to be told that someone had telephoned the police to report him taking photos on his mobile phone of children on the pavement.

He advised the officers that he had merely taken a photo of the building across the street, explaining that it was of interest due to its banality and might be used in a future lecture as an exemplar in how not to turn corners as an architect. He said that he had been unaware of ‘capturing’ any children in the image. Somewhat bemused, but nevertheless satisfied, the police thanked him and left, but he remained a subject of intrigue to those pedestrians who continued to view him with suspicion for several minutes, until his wife arrived with the shopping.

When told this story, I pondered what I would have done had I been asked by the police in similar circumstances to show the images, just taken, on my phone. Even more intriguing was what I would have done had the officers asked me to delete photos that I had taken of a building from a public place, even if those images had contained images of children that were otherwise incidental to the main subject matter.

After serious thought, I decided that although I would have been willing to show the images to the police at pavement-side (no doubt attracting public interest and suspicion as I did so) I would have refused to delete those images, or if requested, to hand over the phone-camera to the police without them arresting me . . . a step that they know must not be taken lightly. I would have been well within my rights, apparently, in making such a stand.

So why am I so resolute in this matter?

The reason is simple, relating to my cardinal belief, as shared by all of us privileged to live in free democratic societies, that our freedom to enjoy the public realm is both established and protected in law. That means that, within reason, we can do as we like. But my resolution also relates to a principle which is particularly important to architects and urban designers: if we were to be restricted in the way that the complainant had thought both reasonable and proper, then potentially all photographs of buildings taken from the public realm would have to have the consent of any adult included within the image, and be free of all children. This would certainly be anathema to most people and a grave compromising of the rights of architects, architectural photographers and indeed anyone else wanting to photograph buildings or street scenes, whether for professional or personal reasons. And if architects should be so restricted, then why not tourists? No more snaps of Trafalgar Square if anyone else is standing there.

The law varies from place to place, and country to country. In the UK, shopping centres are private property so security officials may ask you to refrain from photography. Unlikely, but if so directed you should agree. Likewise, places of entertainment where copyright provisions prevail. But if you are in a public place within the UK you are generally entitled to photograph what you like, and whatever you can see, even if the subject is on private land, for example a house in its garden settings, or a person looking out of a bedroom window (American law differs on this latter point).

Exceptions to this have emerged, for good reasons, in relation to the photographing of children in school playgrounds that are visible from the highway. However, there is no law in the UK prohibiting the photographing of children in a public place, so the complaint regarding the coincidental inclusion of the children in my friend’s photograph of the Waitrose corner façade was not an actionable offence.

Indeed, the Metropolitan Police states in its own advice that members of the public and the media do not need a permit to film or photograph in public places and police have no power to stop them filming or photographing ‘incidents or police personnel’. How very comforting. However, persistent, and aggressive photography of a single person may constitute harassment, which could be deemed an offence.

In the USA, as would be expected, this area is covered by constitutional amendments as laid down by the country’s founding fathers. Unsurprisingly therefore, street photography is all about balancing a photographer’s First Amendment freedom of expression rights with a person’s right to privacy, also protected by the First Amendment. So street photography in the land of the free involves a balancing of the all-too-often conflicting principles of the people’s right to self-expression (of which photography as an ‘art’ is one form) and the right of individuals to be left alone.

Privacy is defined there as ‘the state of being free from being observed or disturbed by other people’. It is generally deemed unreasonable to expect privacy when in a public arena, be that a street, park, the open countryside, or the seashore. Unless of course circumstances otherwise prevail, where a person could have a reasonable expectation of privacy. Hence the vile practice of ‘up-skirting’ has now been established as an illegal form of photography.

One thing is obvious: in this new era of Covid, the public realm here in the UK is not what it was. The central streets of our largest cities are eerily silent, while the pavements of the suburbs are now much more heavily trafficked by pedestrians. But notice how reluctant so many are to make eye contact, hidden behind the inevitable masks. And how strange to have people step into the street to maintain social distance, in the Biblical tradition of avoiding contact with victims of leprosy.

All this is symbolic of a widespread fear of contact and suspicion of the motives of an innocent photographer.

This story had a surprising end: when examining the image after returning home, my friend discovered that the children were outside the field of view, and were thus not incorporated into his picture. Nevertheless, a certain worry remained. Had any neighbours seen him being questioned? Or worse, had anyone photographed the interrogation?

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