Types of Laws
There are two different kinds of legal situations: There are laws, regulations, statutes, and bylaws, which society dictates are things that you are not allowed to do. The government (being municipal, provincial, or federal), on behalf of society, will enforce these, and punish you with fines, jail time, or community service.
The other legal situation is between you and a private citizen or company, and is called Civil Law but may also be referred to as Private Law. Damages and restitution are awarded usually as financial compensation, to the victim.
Canadian Civil Law generally involves a dispute between you and another private citizen or company. Any private citizen or company can sue any other private citizen or company for almost any reason. Judges will look back to similar cases from the past, and use them as a guide in the ruling.
If you do damage to someone, then Civil Law will allow that person to get restitution for the damages. This is a good guideline, but not always the case. In some jurisdictions, for example, in Ontario, if you are charged and convicted of trespassing, the property owner can not sue you for the same reason.
If you break the law (federal, provincial, or municipal) and there is a private citizen or company that is a victim, you will be prosecuted by the government on behalf of society, and the private citizen or company may also choose to sue you for the damages you caused. Another scenario is where no damage has occurred, and you can still be sued, this is much more rare. Note that damage may not necessarily be to property, but may also be to public reputation.
With Civil Law, there are generally two main issues that you will run into: Slander/Libel/Defamation of Character and Privacy Law. Additionally, "Invasion of Privacy" is also commonly sued for civilly.
Slander / Libel / Defamation of Character
Libel, simply put, is where you cause damage to another person by writing about them in public. Slander, which applies less here, is the verbal version of Libel (You say something publicly about them). Both are Defamation of Character, usually a direct, "defamatory" attack on a person's reputation in public.
If a photograph you take is published, which you have a fundamental right to do, you must be careful not to misrepresent or injure the reputation of those who were photographed. This can be done by editing the photo to alter the situation, or adding an incorrect or misleading caption.
The unwritten industry standard for commercial photography dictates that any identifiable person in a photograph should sign a model release. However, in Ontario, the Privacy Act does not protect it's citizens against unwanted commercial use of their image (see Ontario's Privacy Act below).
Other provinces may have provisions in their Privacy Acts (or similar regulations or statutes) for allowing a person to control their image, likeness, voice, and other attributes, which does apply to photography. For Quebec, see Quebec's Human Rights Code, for Saskatchewan, see Saskatchewan's Privacy Act.
Regardless of province, you may photograph and publish a photo of anyone, with the exception of young offenders, who are newsworthy, doing newsworthy things, or are public figures or celebrities.
You are guaranteed the right to take photographs
You are guaranteed the right to express yourself through photography, and you have the freedom to publish the photos you take. Unless you are relieved of your rights (by being arrested), the Charter of Rights and Freedoms guarantees your right to take photographs of anything you want.
However, the Charter only dictates the government's role (ie: the police can't stop you from taking photos, just because they feel like it). The charter does not relieve you of breaking other laws, nor civil law (you vs. another private citizen). It also doesn't dictate what you are allowed to do on someone else's property.
There are way too many things that are just common sense to list here. If you are not aware of the contents of the Criminal Code of Canada, go and read it, it's well worth the time. In summary, don't do things that are against the law, like Breaking & Entering, Fraud, Mischief, Cruelty to Animals, etc. I will go over some of the bits of the Criminal Code below that specifically apply to photography, but you should be aware of what the Criminal Code of Canada covers.
Prowl at night
In addition to trespassing, which is a provincial law, this federal law covers "prowling" at night on private property. Do not loiter on someone else's property, particularly near a house, at night.
Charter of Rights and Freedoms: "Reasonable Expectation of Privacy"
According to the Canadian Charter of Rights and Freedoms, every Canadian is guaranteed a reasonable expectation of privacy. However, this charter applies only between the government and a private citizen, not between you and another private citizen or company. See Criminal Voyeurism below for the law that protects your privacy, and the privacy of others.
You can not take photos of people who are in circumstances where they believe that they have a reasonable expectation of privacy, for example, a bathroom. This generally extends to include a person inside their own home, or anywhere where they have reason to believe is a private place.
Security of Information Act
The Security of Information Act is to protect Canada. Stated simply, do not do anything, or possess any photos that could be considered national secrets, interfere with a large number of Canadian's lives, impair or threaten the Canadian Forces, national security or intelligence.
Avoid taking a photograph of any of the following, specifically in relation to national secrets, unless you have permission (preferably written) from a ranking official:
- Armed forces establishments or stations
- Telegraph, Telephone, Wireless or signal stations or offices
- Places used for the purpose of building, repairing, making or storing any munitions of war or any sketches, plans, models or documents, mining or refining metals, or oil in time of war
- Any non-government military contributor
- Any place where leaked information or damage to it would be useful to a foreign power
Now, this is not to say you can't take a photo of the things listed above, consider public events, like an Air Show, or parade, for example. These laws are to protect the Armed Forces and their supply. However, when the RCMP approaches you after you take a photo of a nondescript building, this may be what they're interested in. Note, that this is treason-level, and for anyone to be prosecuted for this, it requires the Attorney General's direct consent.
Realistically, the government will have to prove that you possessed the photo, with intent to (or proof that you did) communicate it to foreign country or "fail to comply with all directions in the disposal of the photo at the direction of a lawful authority". So, if the RCMP asks you to delete a photo with regards to this act, do it. This is the only time that you are required to delete a photo upon request.
However, in my personal opinion, if you are being arrested for this offence, keeping the photo as evidence may be a good idea, in order to let the court decide whether that image contained anything worthwhile that you were planning to send that image to a foreign entity. By keeping the photo you are not properly disposing of the photo, which is against the law, however, you are also not tampering with or destroying evidence.
The Personal Information Protection and Electronic Documents Act
This Act only applies to the activities of organizations collecting personal information. This may apply to commercial photography (for example, how the information obtained through Model Releases is kept), but not to artistic or personal photography.
Youth Criminal Justice Act
Previously known as the Young Offenders Act, this act protects minors from public scorn. The child's name, and anything that would identify any youth (such as a photograph of them) is forbidden to be published for any youth who is convicted or charged with an offence under this act. This does not apply if the youth is given an adult sentence. This law won't apply to too many people, unless you happen to capture a photo of a charged or convicted youth.
Provincial Statutes and Regulations - Ontario
The Privacy Act protects personal information that is submitted to the government from improper use or distribution, and does not apply to photography, with the possible exception of photography done for a Government body.
Note that Ontario does not have an Act which grants it's citizens ownership of their image, likeness, voice, or other attributes. Other provinces may have this kind of act, however, the Privacy Act of Ontario does not protect these rights. This does not mean that model releases are not be required, since the model could sue you under Civil law.
When you are on private property, what you are allowed to do may be limited by the owner of the property, or by someone acting on the owner's behalf, like their security guard. If the property owner puts up signs or tells you not to do something (eg: no trespassing, no photography, keep off grass, etc), then disobeying the signs or verbal instructions is trespassing. If you are asked by the owner to leave the property, you must leave immediately, otherwise you are trespassing. Without signage, the following should be assumed no-trespass:
- Any other land under cultivation
- Anywhere with trees planted that average less than 2 meters in height
Even on the above-listed properties, you can enter any property that provides notice (via a sign or verbal) that certain activities are permitted (for those allowed activities only), or any premises that implies permission to approach a door (for approaching the door only, of course).
This is the important one: For properties not listed above, when there are no signs, you may enter the premises, and perform any lawful activity you wish, unless told otherwise by the property owner (or someone acting on behalf of the land owner, like a security guard). This is why you are allowed in malls. However, you should always use common sense. For properties that have notice (signed, verbal, etc), you must abide by the notice, but you may still perform any lawful activity on the premises that is not prohibited.
However, if you are taking photographs in a mall, or some other privately-owned-but-open-to-the-public property, and their security guards confront you, they can permit or deny you from doing any activity on the premises, just by telling you. Since they are acting on behalf of the owner, they can control what you are allowed to do, where you are allowed to go on the property, or whether you are allowed there at all. If they tell you that photography is not allowed, continuing to take photographs is trespassing. They may also simply ask you to leave, and by not doing so in an orderly fashion, you are trespassing. They can also ban you from the property, in which case, if you come back, your trespassing.
Note that this is a law (a provincial statute), so the owner can not "sue you for trespassing", however, they can call the police and have you arrested and charged with trespassing, at which point the government can fine you. Unless you actually damage something, it is unlikely that property owner can sue you under Civil Law. If you are convicted of trespassing, the property owner can not sue you under Civil Law.
If you trespass on property and you were previously aware that you are not welcome on the property, through signs or other means (such as being previously banned from the property), the property owner, or security guard, can arrest you ("citizen's arrest" -- although this term is not used in Canada).
The police or property owner may use as much force as is reasonably necessary to arrest anyone who has committed a crime. Should you be arrested by someone other than the police, they must hand you over to the police as quickly as reasonably possible.
Provincial Statutes and Regulations - Quebec
Quebec Human Rights Code
In Quebec, the Quebec Human Rights Code grants all humans the right to their private life. For photography, this broadly-worded right allows each individual person in Quebec control over the use of their image (meaning, a photo of them).
This was recently upheld by the Supreme Court of Canada in a case where a photographer published a photo of an individual in public, without the subject's permission. The image was nothing special, it was taken from a public place of a person in public, and did not injure their reputation. However, the Supreme Court of Canada said that the photographer should not have published the photo without the permission of the person photographed, and ruled in the favor of the subject of the photo. They did note that there are exceptions for newsworthy events, people who are in the public eye, like politicians or celebrities, or if the person was incidental to the photo, and not the main subject(s).
Provincial Statutes and Regulations - Saskatchewan
The Privacy Act
In Saskatchewan, The Privacy Act protects it's citizens against invasion of privacy. This act applies when you violate another person's privacy willfully without a very good reason. Several examples are given, the most applicable to photography is if a photo is used as a way to make money (eg: advertisements), you must have the consent of any identifiable people.
There are several exceptions, including photos which are considered to contain public interest, are newsworthy, or are consented to, then the photo is not considered private, and may be published in recognized newspapers, papers containing public news, or certified broadcasters.
The remainder of the law allows flexibility, based on reasonable circumstances, the nature of the photo, occasion, type of publication, relationship between photographer and subject, personal conduct, etc. This leaves it up to courts to decide on a case-by-case basis whether privacy was violated.
TTC - Toronto, Ontario
Toronto has a TTC Bylaw that restricts photography for *commercial* use, without authorization. This mentions nothing of non-commercial photography for private or artistic purposes.
Remember that some TTC security staff are "special constables", who are actual police officers, and that a metro transit system can be considered as one of the items under the Security of Information Act above.
Also remember that they may also ask you to stop taking photographs or to leave the premises, which would constitute Trespassing if you continued.
Ownership of Photos and Copyright
Copyright of photos
When not under contract or employed to take photos, the photographer is the owner of every photo that they have taken. Even if 2 people take an identical photograph, each photographer will own their own photograph. This includes popular tourist attractions which have their pictures taken several thousand times per day, the photographs may not be terribly unique, but each photo taken is still the property of it's photographer. The term of the copyright is from the time the photo was taken until the remainder of the year you die, plus 50 years.
If you are employed, contracted, or are on an apprenticeship, and the photos were taken as part of the job, then the employer, unless agreed otherwise, is owner of the copyright.
If a company owns the photo, the term of the copyright is the remainder of the calendar year, plus 50 years.
Photography of Buildings and Public Art
It is not against copyright law to take a photo of any architectural work, for example, a building, or a permanent piece of public art.
People Visible in Photographs
The industry standard for commercial photography dictates that any identifiable person in a photograph should sign a model release. However, in Ontario, the Privacy Act does not protect it's residents against unwanted commercial use of their image. Other provinces, notably Quebec, but possibly others, have provisions in their Privacy Acts (or similar regulations or statutes) for allowing a person to control their image or likeness, voice, and other attributes. Note that this does not disallow you from taking photos of them, only what you do with the photos (such as publishing them). If you have tracked down this information for other provinces, please forward it to me for inclusion.
Regardless of province, you may photograph and publish a photo of anyone, with the exception of young offenders, as long as the subject is newsworthy, doing newsworthy things, or are public figures or celebrities. Additionally, photos including people who are not the principal subject(s) of the photo, but instead make up the background do not have any say in what you do with the photograph.
Recap / Myths dispelled
- You can not be fined or charged by a private citizen, property owner, or security guard, but they have every right to sue you if they believe you have done damage to them.
- Nobody can threaten to destroy your camera, lenses, film, other property, nor can they threaten you with physical harm. Nobody can actually destroy your property, forcibly delete photos, expose your film, or harm you. Police can not interfere with your lawful enjoyment of your property. If anyone does harm you or damage your property, you can sue them under civil law to recoup the damages.
- Nobody can force you to delete photos (with the exception above under the Security of Information Act.) According to the Canadian Copyright Act, even if they are unregistered, your photos are owned and copyrighted by you, for your lifetime, and 50 years after the end of the year you die. (Commercial photography differs). They are therefore your private property, and willful destruction of private property falls under the Criminal Mischief.
- Nobody can report that you broke a law to the police, when you have not, or make false statements to discredit you during an investigation.
- Nobody can search you, your bags, car, etc. However, being searched may be a condition of entrance to private property or an event. Another exception is if you are arrested by a police officer, or if a police officer has a reasonable reason to search you, for example, suspicion of concealing a weapon.
- Nobody can detain you or restrain you against your will (with the exception of citizen's arrest), otherwise they are kidnapping you. If a police officer is detaining you unreasonably and arbitrarily, they are violating your Charter Rights.
What should I do when confronted?
- Nobody can arrest you for being uncooperative, however, it is a good idea to be as co-operative as possible, as it helps show that you have nothing to hide. With police officers, being uncooperative may be considered cause enough for them to investigate further. Note that being uncooperative when asked to leave private property or to stop an activity on private property is trespassing.
If you are confronted by a security guard, a private citizen, or a police officer, there will be a conversation. Assuming you have done nothing wrong, most of these conversations will follow similar lines, either: you took a photo of someone or something and they don't appreciate it, or an authority (police officer, security guard, or property owner) believes you are causing trouble, or could cause trouble and wants to assess the situation. Regardless of the situation, there are some things that you can do to help the situation:
[LIST]Smile and be jovial. Doesn't hurt, and eases the mood.[LIST]
- If applicable, apologize for not knowing the policy. (See above Trespassing section: Unless there is a sign posted, the property is of a specific type, or you have been told previously, you have not broken any laws. If you are on private property and the land owner or their security guards are telling you not to take photos, or to leave, you must comply)
- Be clear-headed. Use common sense.
- Understand exactly what authority they have, and what rights you have. If they are owners of the property, they can limit your activities or presence on their property, just by telling you.
- Try to figure out why they singled you out. Chances are that they're picking on you because you have a huge SLR, which may be disruptive, and chances are that they leave everyone with point&shoot cameras, or camera phones alone. It is not uncommon for police or security guards to stop and ask you questions to gauge whether you are going to cause trouble.
- If you are being confronted, there is a problem... solve the problem. If it's something obvious, (Flash photography distracting others, or your photography interfering with the normal operations), then work with them to find a solution. Keep searching, a "no-photography" policy may not be the reason they are confronting you, but rather an easy reason to get you to stop without much trouble. Although you must stop taking photos if they ask you to, you can always talk to them and see if you can be granted an exception.
- Be specific in your wording. Taking a few more seconds to think up the right word is much better than eating your words later.
- Make a scene. The worst thing you can do is to call attention to the confrontation, that will force them to take more drastic measures, such as kicking you off the premises. If it's a busy area and the conversation is going to be lengthy, ask if you can talk in a 'less noisy environment', where there is less pressure to solve the confrontation quickly, and a better possibility of reasoning with them.
- Apologize for taking the photo. There's no reason you should, you did nothing wrong.
- Delete the photo. No reason you should. (This can defuse the situation, but implies to the other person that they have that authority over you, and they will expect the next photographer that comes along to delete their photo too.)
- Be defensive or offensive. Defensiveness implies that you think you have done something wrong and are trying to back out of it, Offensiveness will put them on the defensive, neither will help in reaching a positive solution.
- Tell them they can't do something (like a private citizen kicking you out of a public park)
- Blow things out of proportion, embellish, bend the truth or lie.
- Be hysterical. Even if everyone else has a camera, there is no reason they should apply this rule to everyone else, but there is a reason they're picking on you. Find out why. Property owners (and security guards working for them) can enforce rules on a per-person basis, as they please.
- Be accusing. There is no reason they should put up a "no photography" sign, this is not their fault. Telling you is just as effective as putting up a sign in the eyes of the law, however, prior to them telling you that photography is not allowed, it was implied that photography was allowed, so legally, you are on solid ground, as long as you don't take a photo after they tell you not to.
- Stay in a situation which could cause you or your equipment harm. It's assault, but it's assault that you can avoid.
- Answer unnecessary questions or accusations. eg: "Do you go around taking photos of children everywhere?" Answering this will do you no good. Refusing to answer this will do you no good. Change the line of questioning.
- Say "No". Try proposing alternatives, and steering the conversation into something that benefits you. Saying "No" will make you seem uncooperative and standoffish.
- Ignore them. This will just enrage them.
If the situation develops into something more serious: (If you are asked to leave the property, leave, and ask the following information as you are leaving.)
- Get their full name, and if applicable, employee or badge number.
- Their manager's or supervisor's name, contact information, and hours
- Find out as much as possible about why: Is it a policy? What does the policy say? Who created it, why was it created, and when?
- From there, follow up and call the manager or property owner, and tell them what happened. If other people were there taking photos with point&shoot cameras, mention it, and say that you feel discriminated against. It is likely that they won't know the exact details about the event, however, most security guards are required to keep notes and file reports, so it can be looked up, if it matters. See if you can come to an understanding with the manager or property owner and arrange permission.