Legal

Since this case concerns the rights of citizens to take photographs with a mobile camera, here is an excerpt from a longer article detailing the relevant jurisprudence on mobile photography in Norway and other Western countries. For the full article, see this link.

The legal framework governing photography in public areas is pretty much the same in Norway as in the rest of the Western world – photography is considered permitted in publicly accessible areas unless expressly forbidden. The Norwegian penal code has only one specific mention of photography and that relates to the commercial exploitation of child pornography. Each major city also has separate police regulations, but again the relevant ones for Oslo – which cover every conceivable problem under the sun ranging from skateboarding to loud song performances – has no mention of photography. When photography is forbidden in Norway, there will typically be a sign saying so, most often in the vicinity of security installations or military areas. A proposal to make certain types of privacy-invading photography illegal (such as taking photographs by peeping inside a private home) was shelved by Norwegian parliamentarians in the 1970s.

Reflecting this state of affairs, the Norwegian code on police methods, which goes into considerable details regarding things like video recordings from hidden devices, does not say anything about photography at all, again indicating that the police can take photographs as much as they want simply because everybody can. This interpretation was specifically confirmed by a group of Norwegian legal experts who wrote a critical treatise on police methods in light of European standards on privacy in 2004 (NOU 6/2004). Senior officials of the Norwegian police mostly accept these principles even in cases that more conservative observers would consider as privacy infractions, as seen for example in comments by police lawyer Tor Henning Knudsen in 2003 relating to so-called “candid” streetshots from Oslo (the lawfulness of the photography itself was not disputed and the act of publication considered lawful because no identifiable faces were shown, Dagbladet, 11 June 2003), and again by Trondheim police in relation to a case involving someone photographing naked children using special equipment in July 2010 (specficially describing the act of photography as lawful but indicating concerns regarding publication, Adresseavisen, 31 July 2010). There is even a ruling from Oslo district court as recently as early 2009 which specifically confirmed the right of citizens to make photographs with their mobile phones in public areas (the police had tried to fine a lawyer who photographed them, TV2, 6 February 2009).

In line with this relatively liberal approach, conviction of photographers by Norwegian courts are few and far between, mostly limited to very obvious infractions of privacy in the most intimate ways imaginable. A ruling from Bergen from 2006 on indecent behaviour involved a large number of so-called “up-skirt” photographs as well as a photo of a semi-naked teenage girl in a dressing room (summary of the case in BA, 30 November 2011). Another ruling from Hamar in 2009 involved beach photographies including topless images that were subsequently uploaded to an explicitly pornographic website. Finally, in an extraordinary case from Sunndal involving a gynecologist surreptitiously photographing a large number of women during consultations, a fine of 25,000 kroner (USD 4,000) was imposed in 2010. The case seemed to involve grotesque privacy violations in a number of ways: The extreme asymmetry of power, speaking both physically (the fully clad doctor versus the naked women in stirrups) and psychologically (the unchallengeable authority that many associate with a doctor versus the difficult position of the women who may have been worried and were seeking advice for a health problem that made them uneasy in the first place); the exceptional invasion of privacy (the photographs covered mainly the genitalia of the women); the absence of anonymity (the doctor named files according to the personal names of the patients); a very high number of this kind of intimate photographs (2,000 plus). The slight reaction by the judiciary in terms of a heavy fine seems to verge on the over-permissive. Nonetheless, it is noteworthy that it came after the national prosecutor had intervened (the case was first dismissed by the district prosecutor who considered the images non-pornographic). In other words, if the Norwegian judiciary had wanted to send a strong signal about mobile photography in the period it was involved with that case (2007-2011), it had a golden opportunity to do so – but eventually refrained from imposing a heavier punishment.

The Norwegian situation reflects European conditions and interpretations more broadly. In Denmark, photography is expressly prohibited only with reference to military sites and if attempts are made to take photographs of people who are beyond areas of public access (penal code 264a). In 2006, the Swedish supreme court went as far as dismissing an attempted case against a person who had secretly videotaped naked adults in private gardens (including in intimate situations), arguing that these persons could not have been the victim of an offense as long as they did not know about the filming and only found out afterwards (Sydsvenskan, 15 November 2006). Clearly this decision may come across as overly liberal in light of the private-home red line indicated by the European court of human rights, but it does show just how liberal European judiciaries can be when it comes to photography. Swedish police reiterated this line in 2009 when they declared lawful the photography of thousands of Swedes on the beach (including naked ones) by way of concealed equipment and subsequent uploads of the images to a semi-pornographic website (Expressen, Helsingborg Dagblad, 19 july 2009).

In the Netherlands, one can sometimes find signs indicating explicit prohibition of photography, for example in public toilets. Only cases involving massive privacy violations, such as filming seriously ill people inside a hospital and then publishing the material on TV without their consent, have led to court cases. The European human rights court generally confirmed these interpretations in a ruling related to Austria (Friedl vs Austria), where photography by police of demonstrations was acknowledged as rightful and where it was maintained that privacy rights in the European convention on human rights primarily concerned the right of the individual to “fully be himself or herself” in private areas like a home (in Swedish, cases involving privacy violations are literally called “violation of freedom of the home” or hemfridsbrott.) The UK and the United States go even further in seeing the right to photograph almost anything in public as part of freedom of expression.  The London Metropolitan Police explicitly says it cannot stop any photographic activity (the discussion includes mobile phones) except if it relates to an act of terrorism.

In the United States, restrictions on photography mainly relate to grey-zone areas that are technically speaking public, but where a degree of privacy is expected – above all restrooms and locker rooms, with an emphasis on outlawing photography of the private parts of the body. Similar legislation has been passed in Australia and New Zealand (also referred to as anti-voyeurism legislation). New Zealand stands out as a country whose politicians have deliberated these issues at length before arriving at the conclusion that nudity constitutes the red line that can be meaningfully enforced. In a unique case, New Zealand in 2005 prosecuted a person for non-nude photography, in a case involving a large number of high school girls photographed on their way to school (The Queen vs Rowe, 2005). The verdict of indecent behaviour, which went all the way to the supreme court, emphasised the elaborately concealed method for making the photographies (the photographer was hidden behind curtains in a caravan) as well as the absence of a legitimate purpose. However, legal experts in New Zealand today consider this case as an outlier, not least since the same person was acquitted in a second, separate case by the high court later in 2005 for photographing a number of young women in a public library, which was seen as “strange but not indecent” (New Zealand Herald, 17 December 2005).

This kind of photographic liberalism has in many countries been corroborated by the photographic activities of the state itself. Consider TV programmes of the Candid Camera kind. Norway had a state-sponsored incarnation called Smil til det skjulte kamera, in which thousands of Norwegians were filmed (and often broadcast), sometimes in unpleasant situations orchestrated by the production teams.

In short, in Norway as well as in Europe and the Western world more broadly, photography is accepted in ways it is not in many Islamic countries, like Saudi Arabia, Qatar and Sudan. In Qatar, tourist information leaflets specifically say visitors must ask permission before photographing anyone, especially women. In Sudan you need a government permit for taking any photos. Norway is not Sudan.

The one area of European (and Western) human rights jurisprudence that could conceivably be of relevance in this case relates to stalking. However, the existing laws on stalking in several countries invariably confirm that a single act of photography of a particular stranger is not stalking. Almost every law on stalking requires regularity and duration in harassment that targets a specific individual, and certainly that whatever unwanted attention is involved takes place more than once (examples include Italy, Belgium and England & Wales). In general, the modern judicial interpretation of stalking does not emphasise the original, medieval meaning of the term (“to move stealthily”). Whereas this concept can be form in colloquial expressions relating to photography across Europe (snikfotografering in Norwegian or smygfotografering in Swedish); it is simply not reflected by any legal category apart from those relating to either repeated harassment or privacy invasion in the sense of the private home or the naked body.

In fact, it seems that sometimes, Norwegian police are actually prepared to accept a lot more than other countries in terms of people watching and photographing each other. In a remarkable case, it was revealed in 2011 that a Norwegian security company had not only photographed visitors and people who came to the US embassy in Oslo (the monitoring was done on behalf of the Americans), but also kept files in which people were identified and their political affiliations analysed. Despite this project going much further than the fashion history project of the stalking victim, Oslo police officially concluded that the eager embassy watchers were simply engaged in “observation” (rather than “surveillance”) and as such could do what they did because everybody can. No police action against the group was seen as mandated (Aftenposten 10 December 2010; NRK 19 January 2011).

A question that keeps coming up when I talk to people about my case relates to children. Two points on this. First, my portfolio of street photographs may have contained an extremely small number of people who were technically legal minors.  Since I clearly wasn’t producing porn (which is the only setting where age would legally come into play), I didn’t enquire about anyone’s age. Moreover, the selection of motives mostly covered people in the range 16-35, which is the most important segment in terms of defining street fashion. Methodologically, it was a point to show the width of a population which  subscribed to a particular “look”; however the percentage that may have been included to show extreme ends of the spectrum was tiny, certainly  involving fewer legal minors than what the average tourist comes home with from a trip to a distant country. Most of the combinations of clothes involved expensive garments that are typically only bought when people reach an age where they no longer grow.

And as said before, in any case, this is again legally irrelevant. It is not illegal to take pictures of children. If there was a pattern of persistent photography where pedophilia was suspected, this would normally prompt so much unpleasant questioning by parents and teachers that it would probably be self-regulating. If the police feels that unassisted vigilantism of this kind is insufficient, specific legislative action would be needed before the police would have any legitimate role. Again there are signs Norwegian police don’t understand this, and are simply making up laws according to their own mind. For example, in a recent case from the Stavanger area,  a man was asked to delete photographs taken of children “with whom he did not have a relationship”. Once more the cops are para-legislating; another red line taken out of the air without consulting the national assembly, which is the competent authority if the police think current laws on the book are inadequate. Let me nonetheless put on the record that I have never in my life had a single photograph of a naked child or children in a remotely sexual situation on my computer, or possessed such photographs in any shape or form.

It should be added that in my case, the police’s own actions by and large testify to the absence of an actus reus. I f there was real victim or a disturbance of the public order, the police would have had the duty to intervene as quickly possible to prevent the multiplication of victims or the persistence of disorder in the public sphere. And this they didn’t do even though I have reason to believe they have kept me under watch for pretty much the whole period when I was engaged in street photography. If they truly believed I was a pedophile, they would never let large numbers of unaccompanied children take part in the harassment of me in the Netherlands either.