Freedom of expression: is filming the police in public a fundamental right? – Hugh Tomlinson QC

As a number of recent cases have made clear, the filming of policing activity in public places is a vital method of holding police to account.  But there have been continuing tensions between the police and photographers over filming police activity. In January 2010 there was a protest in Trafalgar Square by photographers against the use of terrorism laws to stop and search photographers.  A campaign called “I’m a photographer, not a terrorist” was launched to protect the rights of those taking photographs in public places.

However, although Guidance issued by, for example, the Metropolitan Police has made it clear that

Members of the public and the media do not need a permit to film or photograph in public places and police have no power to stop them filming or photographing incidents or police personnel.

this often does not appear to have come to the attention of individual police officers (or security guards).

There have been some successful complaints about the use of police powers to prevent photography (see, for example, the complaint by Jess Hurd) but there is no English case law on the relationship between the right to take photographs of the police and freedom of expression.  Advances in technology has meant that the legal issues have arisen in a number of different jurisdictions (see “Is filming the police a felony or a right?“).

In this context, a recent decision from the United States is of considerable interest.  In the case of Glik v Cunniffe (26 August 2011) the US Court of Appeals for the First Circuit held that there is a First Amendment right to record police activity in public.  Mr Glik was arrested on 1 October 2007, after openly using his cell phone to record three police officers arresting a suspect on Boston Common.   He was charged with criminal violation of the Massachusetts wiretap act, aiding the escape of a prisoner and disturbing the peace.   The charges were dismissed but, with the assistance of ACLU, Mr Glik brought a claim alleging, inter alia, that the police officers violated his First Amendment right to record police activity in public.  The Judge refused to dismiss the claim on the basis of qualified immunity and the Court of Appeals dismissed the police appeal holding that

Glik was exercising clearly-established First Amendment rights in filiming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause.

It was noted that

Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.

The Court’s conclusion will resonate with photography campaigners in this country

a citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.

The Citizen Media Law Project and the Thomas Jefferson Center have posts about the case.

Although First Amendment jurisprudence is not always consistent with the approach of the English or European Courts the principles set out in this case are ones which appear to be consistent with the Convention approach.   The importance of the right to gather information for the purposes of promoting public debate has been repeatedly recognised by the Strasbourg Court and strongly suggests that there is a fundamental right to take photographs of the activities of public officials, particularly, police officers.

This post first appeared on Inforrm’s Blog, and is reproduced here with permission and thanks

3 thoughts on “Freedom of expression: is filming the police in public a fundamental right? – Hugh Tomlinson QC

  1. Personally and from experience, I think there may be in practice a lot about the law that some police officers dont know. I sat in on (and blogged more fully about at LawBlogOne) a low level criminal trial recently regarding a prosecution for resisting arrest, and was quite shocked by the police witnesses who seemed to have no idea as to correct police procedures and codes of practice regarding arrest and detention of suspects, i.e. when to inform the detainee that they are under arrest, and the reasons why. One witness even failed to properly note the facts down in his notebook, and then appeared to embelish evidence in the court room which was picked up on by the defence when cross questioned.
    I was even more shocked that the JP in the trial seemed to gloss over the fact that the detainee had not been told that they were under arrest or why and sentenced them anyway, which was quite odd considering the issue of whether a person is told they are under arrest or not is central to the issue of whether they can be convicted of resisting arrest, and clearly involves the engagement of ECHR rights under Article 5(2) which requires that a person detained must be informed promptly of the reason for the arrest etc. These are very simple and core procedures that should be followed by the police not just in compliance with domestic law, but also in order to comply with the requirements of Article 5(2) ECHR.
    The issue of the law regarding photographing police performing their duties in public is just another indicator of the fact that while the law may say one thing, some police officers in some cases may in fact be on a frolic of their own for the simple reason that they just dont appear to know the law.
    The question I would like to know regarding this issue is why are they adverse to being photographed? Surely if they are carrying out their public duties properly they should have no issue with being seen to do so. What dont they want the public or the media to see regarding policing? Or is it a case that following some high profile instances of harsh policing, they are wary of evidence being gathered that could be used against them in a claim?

  2. Thanks for this. It is reassuring to know that people are permitted to use their cameras for non-criminal purposes without the might of the State bearing down on them. Further, they are permitted to use their cameras for the detection and prosecution of crime (eg the use of unnecessary force by a Police Officer).

    It is astonishing that the authorities should even consider a ban on filming their activities. If they have nothing to hide then they have nothing to fear from being filmed. Members of the public submit themselves every day to being filmed via CCTV.Few people mind because there are controls on the use of CCTV that safeguard individual members of the public from its misuse. Provided the camera does not zoom onto an individual, and hence a panoramic view is maintained, then the Data Protection Act is being followed. if a criminal act is in progress, then zooming into the individuals concerned is permitted because of the “detection and prevention of crime” exemptions provided by the DPA, Zooming onto individuals because they are black, and hence are potential shop-lifters (as has been recorded), is a breach of the Act. Quite right too.

    The DPA, because of its Section 7 Subject Access provisions, provides individuals with a means of bringing the authorities to account for their decisions. Private employers and public authorities dislike the DPA because of this (although employer opposition is more likely to be expressed in terms of “excessive red tape”). I suggest that, just as with the DPA, that opposition to being filmed is simply an attempt by the authorities to evade accountability.

    I just hope the authorities can resist their urges to bar or censor new technologies, such as ‘phone cameras and social media.

  3. This really does raise the question of ‘Where is the line drawn?’ Especially with the recent London riots, where police are now using footage to identify suspects via social media. But it is true? If there is a raising issue with taking photos of police, will it soon be questionable to use a smartphone in the same circumstances? Even if the user has no ill intentions?
    Katie Leaver, London Loves Jobs

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