Comment The individual right to take photographs is being threatened, and distrust of police and government motives in respect of photography is growing. On Monday, the issue will be defiantly, peacefully raised as a mass demonstration, supported by comedian Mark Thomas, converges on New Scotland Yard to assert the right of snappers to take pictures.
The demonstration is a direct response to new powers that the police will acquire on that day under the Counter-Terrorism Act 2008, which many fear will be used to further restrict and harass photographers. This follows a year in which the issue of the individual right to photograph has rarely been out of the news.
The new law makes it an offence to elicit or attempt to elicit information about an individual who is or has been a member of Her Majesty’s forces, a member of any of the intelligence services or a constable, "which is of a kind likely to be useful to a person committing or preparing an act of terrorism, or publishes or communicates any such information".
In line with the model used in related laws, the offence itself is "strict liability": it is the gathering of information that will be deemed to be the offence, and a defence that the person had a "reasonable excuse for their action" is only allowed after the offence has been charged.
An obvious concern is that the police will quickly decide that any photograph of a serving officer is likely to be useful to a terrorist. This new law would therefore allow them to clamp down on the practice – on which the police have previously voiced concern - of independent filming of police conduct at demonstrations.
As with all such powers, the government claim is that they will only be used where necessary. However, the recent history of stop and search under the Terror Act 2000 gives good reason to be wary of any government claims in that respect. Latest figures suggest that around one in a thousand stops under existing law result in an arrest - this, in turn, strongly supports the view that the police are not using these powers where they have grounds to suspect an individual of a particular offence – but are being used as a general stop-and-search power.
When it comes to photography, the list of "unfortunate incidents" to have taken place in 2008 is well-publicised. Early in the year, the Met made few friends amongst the photographic community by running a poster campaign that urged the public to be on the lookout for suspicious photographers.
Throughout the year, there have been repeated reports of police – more usually community support officers (CSOs) - stopping individuals while taking photographs and demanding explanations from them under existing terror legislation. These stops range from the questionable - the grounds for suspicion appear light to non-existent – to the potentially illegal, where the stop has been accompanied by a seizure of camera or deletion of photographs.
The counter-argument from police and government is that these incidents are exceedingly rare: people continue to take hundreds of millions of photos every year, and while these encounters, when they happen, are clearly intimidating to the individuals concerned, they affect a negligible fraction of the populace.