Rough Theory

One of the bits of feedback I’ve received from my presentation to the HDR Conference a few weeks ago, was that the photographs I used “gave the impression of a depopulated landscape”, and that I should include more photos with people in them.

When you photograph new developments, of course, you often simply are photographing depopulated landscapes: some photos are designed specifically to demonstrate this strange period of well-laid-out infrastructure and landscaping, in preparation for people who haven’t yet moved in.

Or the destructive process that precedes new developments:

Some of my photographs, however, are of lived-in areas, and could almost certainly communicate their messages better if they included people using the environments being photographed. I have, however, been artifically contriving the shots to make sure that no people are in them, because of an awkward intersection between my need to include visual material to demonstrate some points in my research, and the assumptions of the formal ethics clearance process about consent requirements.

The formal ethics clearance process for social science research is modelled on similar processes for medical research involving human experimentation, and also influenced by Australian privacy laws that govern what corporations can do with information they collect from members of the public. This is at best an awkward foundation for thinking through the ethical implications of social science research. The structure of the ethics process also has the unintended side-effect, as I can attest from watching students choose their research strategies, of discouraging more naturalistic and less structured qualitative data collection.

Ethnographic modes of research, while they require sustained thought and ongoing attention to the ethics of the relationships you develop in the community where you research, sit in tension with a formal, medicalised consent process, in which you sit down with each individual who will be participating in the research process, explain the “risks of the procedure” to them, and then ask them to sign that they are still willing to proceed in spite of these risks… In my experience, students look at the questions on the ethics application form – which includes requests, for example, to list all of the questions you intend to ask during an interview – and immediately begin to recast their research techniques into a form that can easily respond to the questions posed during the ethics process. This tendency is further encouraged by stories that circulate around the university of students who persisted with submitting ethics applications for less structured forms of research, and then had to resubmit to the ethics committee multiple times, delaying their research by months in the process. Research students operate on an ever-stricter completion deadline in Australia and, in this context, uncertainty over whether and when you can obtain ethics clearance to begin your research pushes students into “safer” research strategies.

To give fair credit where it is due, I should note that it is not always difficult to get a proposal for unstructured qualitative research through the ethics committee: my own proposal went through unconditionally on its first go. But I was confident that I needed to use ethnographic techniques, and so didn’t let the bias of the ethics forms toward quantifiable survey material worry me – I just proposed modifications to the basic terms suggested by the forms. I also, though, have a long background in writing drafts of legal contracts and so, while I’m not a lawyer, I’m comfortable explaining what I’m trying to do in legal language, and exploring the research process from a risk management perspective. I also took care to speak with the chair of the committee before submitting my application, to iron out any potential issues before submitting the final ethics application. I would recommend that all students take similar steps.

Nevertheless, there were a few areas where I followed the default emphasis of the ethics application documents – particularly in retaining the presumption that all data should remain anonymous, unless I have walked someone through a formal discussion of the research risks, and obtained their written agreement to use their identity. These restrictions are now creating flow-on problems in a number of areas – causing unueasy compromises like my contrived production of photographs of depopulated landscapes – because I haven’t yet canvassed with the ethics committee the possibility that I might want to use a photograph that includes a number of people incidentally wandering through a landscape, people whose identities I don’t know, but who could certainly be identified by someone if I publish their photos.

This problem is compounded by the fact that various people I’ve interviewed have noticed me wandering through their neighbourhood with the expensive equipment that I can check out from the university – and have begun to ask me whether I can photograph community events for distribution to the local community. The answer is yes, I can – as a personal favour. But if, more selfishly, I want to use some of these… populated images in my own research, I need to amend my ethics application very quickly – and this time around, I need to enter into the awkward realm I previously avoided: how to justify using “data” that involves people who don’t realise their actions are being recorded, and who won’t have an opportunity to consent in any formal way.

I’ve begun to talk strategy with some members of the ethics committee, and have received the somewhat legalistic advice that perhaps it would be easier to have someone else take the photos, and give them to me – since received photos, like received letters and other writings, or second-hand observations that come up in the course of interviews, are not subject to formal consent from the person who wrote or was portrayed in this second-hand material. (Although, as an aside, some of the most vexing material from interviews concerns people’s unsolicited comments about others – I censor an enormous amount of this material because, consent form or not, I would expect it to cause problems if published…)

While this clever legalistic dodge amuses my inner lawyer, the reality is that, paltry though my photographic skills may be, I’d still like the option of framing the shots myself, and I also like the freedom to take shots on the fly, without making prior arrangements with another photographer. I’m also concerned with the principle of the matter: are we planning to state that researchers can’t take their own photos for research purposes, unless people can’t be identified in them, or formal consent obtained from each individual? If not, we need to work out the true risks of including street photography and similar materials in academic research, and adopt safeguards that are appropriate, without stifling academic analysis.

So I’ve been digging into the law relating to street photographs in Australia. It’s interesting stuff. From a very preliminary read (and please remember this is a non-lawyer writing, so don’t plan on waving a printout of this blog entry around in your defense, if someone objects to your photographing public places), there are reasonably consistent protections of your right to take photos in public spaces, even if these photos include people who have not consented to being photographed, as long as (please note this list makes no claims to comprehensiveness, or even accuracy!):

• no court order restricts photographing a particular person (this is the diciest restriction, as the photographer wouldn’t necessarily know…)
• the photographs aren’t offensive in character (so, if you’re planning to point your camera up a woman’s skirt, don’t count on defending yourself by pointing out that you took the shot from a public footpath…)
• the photographs will not be used for commercial purposes

The commercial purposes restriction is a complex one: if I’m understanding correctly, it doesn’t prevent you from selling the photographs you take. It also doesn’t prevent you from using the photographs to demonstrate an editorial point in a commercial publication, or to illustrate something you’re writing about, in a work that is being sold. It does, though, prohibit you from using the photo in an ad, or on a book cover, or in some other context where the photograph itself has become a tool for selling a product.

Photographs in private spaces are more complicated, because the landowner has the right to prohibit you from taking photographs on their property (although not the right to prohibit you from taking photographs of their property from the vantage point of a public space). If you manage to take photos anyway, they may also not have the right to ask you to delete them or enjoin you from publishing them – but I’m a polite researcher, so I’m not delving too deeply into what I can or cannot do over the objections of property owners… ;-P

So, from a legal point of view, there doesn’t seem to be a particular problem with using photographs of people in public spaces, even if they aren’t aware of being photographed – as long as I don’t stick one of those photos on the cover of the best-selling book that we all know is going to result from this research… From the standpoint of the formal ethics process, however, there is a presumption that the anonymity of people you’re researching should be preserved, unless you have a very good reason for revealing who people are, and unless you have their written consent.

In my original application, I addressed this presumption by committing to censoring any information that could be “uniquely identifying” of a research “subject”, unless I had consent in writing from that person to identify them. Photographs are intrinsically “uniquely identifying” – even if I personally have no idea whom I’ve photographed. So a modification of the original application is clearly in order… I’ll now need to work out how to explain why my research “needs” to breach the ideal of anonymity, and outline the levels of censorship I might still apply when choosing which photographs to use in the research…

Note: if anyone else is interested in following up on the issue of the legality of street photography, particularly in light of recent Australian controversies over photography bans, I found the 4020 website a particularly useful starting point.