Sunday, 14 February 2010

Privacy in public places... and for whom?

There's been an interesting piece in the news here recently .. and to be honest I'd missed it until Rick Falkvinge mentioned it on his blog.  It's about a guy, Jesper Nilsson,  that sees two men coming on strong to two teenagers in the underground and decides to take pictures of it.  The men, as he suspects, are plain clothes policemen, and - in a move that perhaps is strangely familiar to brits reading this -they don't take kindly to having their pictures taken (not least when they hear that the guy in question - Jesper Nilsson - runs an on-line newspage.) 

Jesper reports the whole thing in length on his blog - and I have to say it's only his version of events that is fully reported.  What Jesper goes on to tell is how he is put between a rock and a hard place - delete the pictures or get taken in on suspicion of being under the influence of drugs (or a breach of the peace -"ofredande"). In the end he gives in and deletes the pictures.... and a video film that's been recordig while the 'discussion' has been going on.

 But.. being a resourceful chap - when he gets home Jesper manages to recover the image files from the phones memory - and even to get a (slightly garbled) section of the the film after sending the damaged file off for repair.

These all posted on his blog.  He has reported the policemen and enquiry has been started - and, meanwhile, he policemen have reported him for breach of Swedens PUL - data protection legislation that limits the publishing of individuals personal details (including photos).

The story raises all sorts of interesting questions about public life and privacy.

Are you allowed to photograph policemen doing their job in a public place?
In Sweden at least the answer to this seems to be implicitly yes..  In Sweden you may photograph anyone anywhere, as long as you are in a public place or are not forbidden by the owners of whereever you find yourself.

But is the underground a public place?
Stockholms underground is a public sector utility, run on a day to day basis by a private contractor.  Despite being used by hundreds of thousands of people everyday I suspect it doesn't count though as a public place -  there are for instance guidelines on when you need to ask permission to take pictures or film..  but for non-commercial private use you don't need permission.  (Bear in mind that in a recent IPRED case a password protected server was considered not to be private because it could be accessed by around 20 000 people)

So Mr Nilsson may take pictures as long as he doesn't intend to use them commercially..  or publish them (which begs the question of what happens if you change your mind after you've taken a picture?)

But it seems he thought of publishing them from the start, and has in fact now done so... 

So, if he wasn't allowed to photograph, can a policeman tell him not to?
Assuming they understood the details of the photography policy, shouldn't it still be an employee of the underground that objects to them taking the photo?

Mr Nilsson now has pictures in his phone that he perhaps had no permission to take.  Can a policeman order him to delete them?  Well clearly they can - but in Sweden at least they have no right to.... uncomfortable as it may be to be caught on film in the course of duty, they can't ask you to delete them.

Now the next part is interesting...  because the rules for PUL are different if you are a journalist publishing in the news than if you are an individual posting to an unofficial news channel like a blog.  So..  

You've had a bad day and decide to write about it on your blog.  Do you have to censor it to protect the privacy of individuals that have the main role in the events?   On his blog Mr Nilsson risks running fóul of data protection rules - whereas on his online paper he wouldn't.  Nor do all the mainstreams that have since reported the case - including the names of the policement concerned. Should there be different rights to publish what very much seems to be a topic of real public interest if you choose an unofficial channel?

Now interestingly Mr Nilsson never names the policemen concerned - in fact he complains that they never showed him any identification to show they were in fact policemen.  So - in the context of a public official carrying out their duties in a public place - is there an issue in reporting on their behaviour? What's the balance between accountability of public officials and their right to privacy ? - when that right is being invoked as a threat intended to censor?  While it may be right for a spokeperson for the state to remain anonymous - because it is their official position not their private life that's in the public view -in this case it is just that their alleged behaviour doesn't match up to the expected standard of behaviour that makes publishing the event of public interest.. and even in the state's interest.  Faith in the police depends on just and fair dealing with ALL the public.

And of course...  most importantly, what sort of world are we coming to if policemen are using intimidating threats against a member of the public just because they don't like what they are doing? 
Which is not to say that this is common behaviour in the police - but if what's alleged is true it's an horrific abuse of power.


Lastly.. by way of a footnote..  reading the conditions for taking film and pictures in the underground I spotted that it's not allowed to take commercial pictures of graffiti, people jumping the turnstiles and a range of other things that might show the underground in a negative light.

"Det är heller inte tillåtet att filma eller fotografera vandalisering eller graffiti, så kallad plankning, våld mot resenärer eller personal, rökning eller användande av illegala droger eller personer som vistas i SL-trafiken utan giltig biljett."

 Doesn't that smack a little of censorship???

Piratpartiet and The Pirate Party -  Putting privacy first.

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