PhotoLegal readers living in the London area may be aware of an incident on London Underground of a station assistant verbally abusing a passenger. Blogger Jonathan MacDonald videoed a section of the incident and published the story on the internet, which was in turn picked up by the press.

A question was posed by a member of the District Dave London Underground forum who felt that the original posting and publishing of the footage might contravene the Data Protection Act (DPA) as the identity of the staff member had been revealed by the press, leading to abuse, trial by internet and resignation by the staff member. Personally I’d always applied a common sense approach to my photography and posting of images online, however, perhaps naively I hadn’t researched implications of the DPA upon photography. The question was a suitable nudge for me to familiarise myself.

The full DPA can be found online, however JISC Digital Media have written a very good overview concerning the implications of the DPA and have included case law. Section 32 (1) of the act reads:
“Personal data which are processed only for the special purposes are exempt from any provision to which this subsection relates if—
(a) the processing is undertaken with a view to the publication by any person of any journalistic, literary or artistic material.”

Another aspect of law that photographers would need to be aware of would be a right of privacy – does the person have a right to privacy when the photograph or video was taken? This depends of course on the location and whilst LU is private property, a station platform is still a public place being as it is accessible to the general public with a valid ticket/validated Oyster card.

The actions of the station assistant at Holborn station on 15th October leave a lot to be desired, however the incident does need to be put into some sort of context. Incidents of station staff being abused or even physically attacked by members of the general public, whilst not an everyday occurrence, are far more frequent than examples of LU staff abusing passengers. I therefore feel compelled to ask whether the press is inclined to treat both with equal gravitas revealing names of passengers who verbally abuse or physically attack LU staff?

Based upon what I have read and understand about the DPA, no law had been broken as the video was used for news purposes. In addition the initial blog or early press reports did not name the LU staff member with the first Evening Standard article asking “Do you know the Tube worker? If so ring the Evening Standard newsdesk…”

The DPA was written in the infancy of the internet. Today there are more implications of revealing personal information. By Googling the name of the former LU employee it is clear that many have posted abusive comments targeting him. I also understand that his parents have been threatened and his address may have also been published on the internet. The latter, if revealed by anyone other than the person themselves, arguably might be a clear breach of the DPA but certainly should be seen as an attempt to incite hatred or abuse; a criminal act.

Referring back to the text of the DPA, does this mean that anyone taking a photograph is except as it could be argued that this constitutes artistic material?

Googling “Data Protection Act and Photography” reveals some interesting links, including one originating from Amateur Photographer. The article suggests that there is a very grey area between photography for personal use and professional if the photos are published. Personal use and uploading to social network sites are okay, but publication in the press isn’t unless the photographer at least considers blurring identifiable faces. So what about images captured by amateur photographers and uploaded to a Fotopic, Flickr or other photo gallery websites? True to form the current rules appear to the layperson to be as clear as mud as there is no definition of “personal use”. Lets hope that the Information Commissioner’s Office is able to apply common sense when it publishes a new code of practise carefully defining the use of images, clarifying rules about the use of a photo if it were taken on public or private land and whether those persons in the photo can reasonably expect privacy. In addition there must be crystal clear definitions about differences how images can be used by amateur hobbyist photographers as opposed by those seeking to source an income.

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