The Fundamentals of Photographic Consent
By Savannah Dodd
Consent is rooted in respect for the human right to autonomy, the right to make decisions about oneself. Applied to photography, it means that people have the right to decide whether or not they want to be photographed. A good way to ensure that we are respecting a person’s right to autonomy is by asking for consent.
Consent can take many different forms, and different photographers may choose to ask for consent in different ways, depending on the work they are creating. For example, a portrait photographer will need to work together with the person to make an image, so he will want to ask for consent before he starts photographing. Contrastingly, a street photographer might want to capture people in natural, candid poses, so she may prefer to ask for consent after taking a photograph.
There are some situations in which a photographer may choose not to ask for consent, and there are valid reasons why a photographer might choose to forego consent. For example, in situations when asking for consent could endanger the safety of the photographer or of the person being photographed.
There are, however, a few important caveats.
In certain countries, like France and Spain, consent is a legal requirement - even when photographing in public spaces. It is important for photographers to familiarise themselves with the laws of the country that they are working in. A good starting point is the Wikimedia Commons chart, however this should not be relied on a source of legal information.
In the commercial photography industry, consent is always required if the people in the image are identifiable and the image is used for commercial purposes to promote a product, service, or individual.
Even in situations when a photographer is unable to verbally establish consent, there are other ways to respect an individual’s right to autonomy. For example, in a fast-paced news environment or a large public demonstration, a photojournalist might rely on passive consent from people’s body language to indicate that they are okay with being photographed. In particularly chaotic situations, it may only be later, when reviewing the photographs that they have taken, that they notice that a person is expressing non-consent through their body language, perhaps through their expression or by putting their hand up. In these instances, the photographer can choose to mark that image as unusable, respecting that person’s autonomy.
Consent forms and informed consent
Often, clients will ask photographers to use a consent form or a model release form as part of the consent process. While the principle of consent is based on protecting the rights of the people that we are photographing, consent forms are often, in practice, more about protecting an individual or an organisation.
Sometimes the consent forms that photographers are asked to use are several pages long and full of confusing legalese. Some photographers even report being asked to use consent forms that are not written in the language of the person being photographed. These are indicators that the consent form is not fit for purpose and is not based on the interests of the person being photographed.
However, one of the most common problems with consent forms lies not in the form itself, but in how the form is used.
Here we need to make an important distinction between two terms: consent forms and informed consent. Consent forms provide evidence of an agreement. A consent form might be used as part of an informed consent process, but having a person sign a consent form is not itself a substitute for informed consent. These are two different processes.
So what is informed consent?
Informed consent is permission that a person grants to be photographed, with full knowledge of where, when, how, and for what purpose the photographs will be used, and with the understanding that they can say “no” without consequence.
Let’s unpack this a little bit.
The first bit of this definition is the part that we are all familiar with: permission that a person grants to be photographed. However, consent to be photographed does not equal consent to share that photograph. For example, if I consent to a person taking my photograph, I am not also automatically consenting to appearing on their Instagram. These are two different activities, and each activity requires consent. Therefore, understanding where, when, how, and for what purpose a photograph will be used is fundamental to informed consent. A person can only give consent if they know what they are consenting to.
Informed consent is freely given consent. This means that the person giving consent must feel that they are able to say “no.” For example, if someone fears that they will be harmed if they do not give consent, then their consent would not be freely given.
There can be many barriers to a person feeling able to say “no.” These barriers will depend on the context that the photographer are working within, the client they are photographing for, and the person they are photographing, among other factors. It is a photographer’s job to be sensitive to these barriers and to ensure that the person they are photographing understands their rights within the photographic process.
It is also important that the person we are photographing understands the potential risks. If the intended use of the photograph could harm them – physically, psychologically, emotionally, or reputationally – it is important that they are informed of this risk before they consent.
At its core, informed consent is about having an honest, on-going conversation with people about the future of the photographs we take of them. When done really well, informed consent offers an opportunity for people to have a say in how their image is used, perhaps by implementing a multi-layered consent process which can give them more choice in how they are represented.
Who can consent?
Particular care is needed when working with children or adults who may be unable to consent for themselves. It is essential to consider whether a person is in a position to fully understand how taking and sharing their photograph might impact them now or in the future. For example, when photographing an elderly man experiencing dementia, a photographer may need to seek permission from both him and his next of kin. Similarly, when photographing a child, it is important to seek consent from both the child and their parent or guardian.
Notice the words “both” and “and” in the examples above: although consent from a man with dementia or a child is not sufficient due to their limited understanding of the potential impacts of participation, it is still important to ask the person being photographed for their permission. This is part of respecting an individual’s human rights.
Dealing with non-consent
Dealing with non-consent can be uncomfortable. Sometimes it is embarrassing or even dangerous to be asked to stop photographing. Some photographers have told me that they choose to not ask for consent at all because they are afraid of being told “no.” This, of course, is not a good reason to forego consent. If we can become a little more comfortable with non-consent, then asking for consent will become a whole lot easier.
There are many different strategies that photographers can develop for dealing with non-consent. For example, a photographer might give them a business card and tell them that to get in touch if they change their mind, or simply wish them a good day and thank them for their time anyway. It is important to find a way of responding to non-consent that makes you feel comfortable and more able to confidently ask people for their consent.
When we are told “no,” this is actually a very good sign: it means that we have done a great job creating an environment that enables people to freely give or withhold consent.
