Freedom of expression: is filming the police in public a fundamental right? – Hugh Tomlinson QC
31 August 2011
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.
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