Is Photography a Crime?

The Pilgrim - Digital photograph

Procession at Batu Caves, shot during Thaipusam. Faith and devotion are some of the things that I have yet to understand, but its practice is something I find fascinating and mysterious

The Prison School - Digital photograph

My secondary school had been a metaphorical prison to me. We were never told “why”, only to obey. Going to university (or even college) was like flying out from a bird cage. I now have the freedom to debate and disagree. More of my peers should appreciate this

Pasar Malam at Midnight - Scanned B&W film

Taman Connaught’s weekly pasar malam (night market) has a reputation as the nation’s longest. So every midnight when the hawkers start packing up, we leave behind the nation’s longest garbage trail too. MSC is not the only supercorridor around here

Abandoned and Reclaimed - Scanned colour negative film (expired)

This was shot in my hometown in Kulim. As people migrate to cities for opportunities (presumably in KL or Penang), these old houses are left behind. Eventually, nature reclaimed what is formerly its domain. However, it won’t be too long before the urban sprawl catches up. The trees - along with the old house - will be cut down once more for concrete to take its place


By Koh Jun Lin

A heated argument

An old man leans against the door to his humble shop, gazing at the traffic crawling past. Relaxed. Contemplative. Perfect.

I raised my camera; he raised his hand to shield himself.

Too late! The shutter goes off with a silent *click*, and what unfurled was a nightmare. I have once been threatened with arrest by Australian policemen before: apparently taking pictures of the Australian railroads is an act of terrorism. But this was much worse, and it did not help that I was using a film camera instead of my usual dSLR for this particular occasion. Oh dear, if only I had superhuman reflexes!

In the ensuing slanging match, the old man claims his right to privacy while vacillating between:
  • Calling the cops; an option which I welcomed since things were getting hot. In fact I did ask him to proceed.
  • Threatening to photograph me; to which I gladly posed for a photo that was never taken.
  • Threatening to smash my camera.
  • Threatening to beat me up? (But seriously, an old man who is almost certainly past 60 versus a 22 year old!).
He went through the list at least 3 or 4 times without actually doing anything; much to my dismay as I really wished the cops had been called. In my defence, I claimed that he was in a public area which was not under any privacy jurisdiction. The only reason I might need his permission was if I would like to use his image for commercial purposes; which was not the case. I am just a photo enthusiast practicing my favourite genre: street photography. I meant no harm and was apologetic.

In any case, I was told at the Bar Council (read: lawyers, lots of them) as recent as 4 months ago that Malaysia lacks legislation dealing specifically with privacy. So it would have been a moot point, his case would not have stood up in court. On the other hand, intimidating me was “criminal threatening”. Touching my precious antique camera would be “trespass” and smashing it would be “criminal damage”. Touching me would be either “assault” or “battery”.

Eventually, we (grudgingly) agreed to have the film developed at the photo lab next door. He took what he claimed was rightfully his, while I kept everything else. In return, I did not have to argue with him but I could save my breath, go home and have a good dream.

Now I deeply regretted not standing my ground.


More heated arguments

I am not alone. Worldwide, street photographers and their subjects struggle with at least some degree of uncertainty about what we could, or could not shoot. While successful photographers in more “traditional” genres like weddings are highly-celebrated, we are the underdogs of our profession.  We are despised and have often been misunderstood. We are seen as sexual predators, blackmailers, killers, terrorists and more, all rolled up into one hideous package. Princess Diana’s death while being chased by paparazzi; and the climate of fear produced by 9/11,1 do not help our image.

There is a reason for this uncertainty of course. It is difficult to balance between one’s freedom of expression and one’s right to privacy: you would argue them as human rights rather than legal rights2. There are other things to consider too: where do you draw the line between casual snaps and harassment? What about copyright, do I have to pay the architect or owner of a building the right to take pictures in front of it?3. Take note too, that some people even claim “copyright protection” as defence against being photographed. If I were to take a panorama of the lake at KLCC Park with a particularly high resolution camera, do I need to ask every single soul at the lakeside for permission, or just shoo them and cordon off the entire park? The old man said I should at least ask for permission. But clearly this was untenable, and this was not just because he would not be striking the same pose after I had done the asking; even if he were to consent!

Some of the issues above are a result of ignorance rather than ambiguity of the law. For example, the Copyright Act does not cover the use of a person’s image. In addition, it would be unreasonable to have any expectations of privacy in a public view area in any country, just as it would be unreasonable for me have sex in the middle of the road and then sue everyone who might be watching (with camera phones no doubt) for violating my privacy.

If the right of privacy does extend into public space, we might as well ban cameras altogether. It would become one right which would be very easily violated. The smaller the camera, the harsher the ban would be. I am sure the works of Henri Cartier-Brensson and other famous street photographers would become very invaluable too, for works of the same genre could no longer be produced legally.

But all that is just legal talk. What about ethics? The fact remains that I had offended someone. Was the old man being unreasonable, or was I just being rude. Street photographers have a vital role in society: they capture real, mundane, and ordinary life, in ways which are (hopefully!) interesting that say something about our culture and society at that particular time and place. At the British Parliament last year, MP Austin Mitchell had called photography “the most genuine and accessible peoples’ art” because it is widespread and enjoyed by many.

Would this justify ignoring the old man’s demands? What if he had been more confrontational, would I then be obliged to work out a compromise without regretting it later? Alas, I do not have the answer. Perhaps that is why I am still stuck at university, listening to my seniors and lecturers preach what horrors await me at “Media Law and Ethics” class.

I can hardly wait!
  • [1] As far as I can recall, no terrorist groups outside Hollywood have been known to photograph their targets. On the other hand, photography proved useful in exposing all manners of injustice, especially with the proliferation of camera phones.
  • [2] Freedom of expression is guaranteed by Article 10(1) (a) of the Federal Constitution, although hardly practiced. On the other hand, Malaysia is a signatory of the United Nations Human Rights Declaration, in which freedom of expression is guaranteed in Article 19, and the right to privacy in Article 12. However, legislation to enforce a right to privacy was never in place. There are other laws which may be applicable to some breaches of privacy, but in a piecemeal fashion. These include trespass, law of confidence, and outrage of modesty.
  • [3] Answer: No. Copyright Act 1987 S. 14 only gives the copyright owner control over the construction of buildings using his design. Photography is allowed.
     
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