Frameworks for Informed Consent:

Perspectives from Law, Ethics, Journalism, and Human Rights

Research Memorandum Prepared for WITNESS By Jennifer Sperling and Julie Wilensky Allard K. Lowenstein International Human Rights Clinic Yale Law School October 2005

Frameworks for Informed Consent: Perspectives from Law, Ethics, Journalism, and Human Rights Table of Contents I. II. Introduction.................................................................................................... Moral and Legal Considerations Underlying Informed Consent................... A. Moral Considerations................................................... 1. Disclosure..................................................................................... 2. Voluntariness................................................................................ 3. Comprehension............................................................................. 4. Competence................................................................................... B. Legal Considerations................................................... 1. Common Law Jurisdictions........................................................... a. The United States.............................................................. b. The United Kingdom........................................................ 2. Civil Law Jurisdictions.................................................................. a. France................................................................................ b. South Korea...................................................................... 3. Mixed Jurisdictions (Civil and Common Law).............................. a. South Africa...................................................................... b. India.................................................................................. Journalism and Human Rights Documentation: Distinct Approaches to Informed Consent........................................................................................... A. Journalism................................................................................................ 1. Scope of Use.................................................................................. 2. Proceeding Without Consent........................................................ 3. Secret Recording.......................................................................... 4. Special Populations...................................................................... a. Individuals with Mental Disabilities................................. b Children............................................................................. c. Victims of Sex Crimes..................................................... B. Human Rights Documentation................................................................. 1. Scope of Use................................................................................. 2. Proceeding Without Consent........................................................ 3. Secret Recording........................................................................... 4. Special Populations...................................................................... a. Individuals with Mental Disabilities................................. b. Children............................................................................ c. Victims of Sex Crimes...................................................... Conclusion: Moving Toward an Informed Consent Framework for Human Rights Documentation................................................................. 1 1 1 3 3 3 4 5 6 6 7 8 8 9 9 9 10 11 13 14 15 17 19 19 19 20 21 22 24 25 26 26 28 29 30

III.

IV.

Appendix: Full text of Interviews..................................................................... 33

I.

Introduction

Informed consent is both a legal and a moral doctrine. It has been used in the field of medicine since the 1950s to regulate doctor-patient relationships, particularly in research. Human rights advocates have invoked the right of indigenous people to free, prior, and informed consent to decisions affecting the development of their traditional lands.1 Given the sensitive, traumatic, and often horrific nature of human rights violations and the imposition on privacy and safety that may accompany the documentation of such abuses, the doctrine of informed consent is highly relevant to photojournalism and human rights advocacy and documentation. There is no single framework governing informed consent or the use of photos and video for human rights advocacy and documentation. There are, however, general principles and guidelines that are used repeatedly across a variety of relevant contexts. This research memorandum provides an overview of several related frameworks for informed consent that are applicable to the use of photos and video. Part II focuses on the theoretical components of informed consent, describing its ethical and moral underpinnings, as well as the legal frameworks of privacy and defamation in various jurisdictions. Part III examines relevant differences between journalism and human rights advocacy and documentation that affect the role informed consent plays in each context. In addition to relying on secondary literature from major media organizations, NGOs, and media codes of conduct, Part III also uses information from interviews with a variety of organizations (international and domestic human rights NGOs and an international news agency) that use photos and video in their advocacy and reporting.2 For both journalists and human rights organizations, many common challenges and practices emerge around several issues related to informed consent: defining the scope of use of photos and video; when it is acceptable to proceed without consent; secret taping; and dealing with special populations, such as children, people with mental disabilities, and victims of sex crimes. Part IV raises the question of whether a unified framework of informed consent would be useful for human rights advocacy and documentation and concludes with a discussion of the commonalities across contexts that could provide the foundation for such a framework. II. Moral and Legal Considerations Underlying Informed Consent A. Moral Considerations The moral considerations that underlie the principle of informed consent revolve around the maxim that [f]ew if any choices are more private and intimate than those that concern the use made of ones own body, and thus society should not permit ones bodily integrity to be threatened by another unless one has knowingly and voluntarily consented to . . . the intrusion.3 This definition appeals to both the privacy and autonomy rights of the
1

See, e.g., Standard-Setting: Preliminary Working Paper on the Principle of Free, Prior, and Informed Consent of Indigenous Peoples in Relation to Development Affecting Their Lands and Natural Resources, U.N. Commission on Human Rights, 22nd Sess., Agenda Item 5, U.N. Doc. E/CN.4/Sub.2/AC.4/2004/4 (2004). 2 For complete transcripts of each interview, see the Appendix at 33. 3 Peter Schuck, Rethinking Informed Consent, 103 YALE L. J. 889, 924 (1994).

individual and is primarily concerned with whether it is just to subject someone to something for their own good or for the larger good.4 These moral considerations are important in the field of human rights documentation, where photographic or video evidence can sometimes put the individual subject in danger even as it raises awareness of larger issues of injustice. Photojournalists often face difficult ethical questions when documenting disasters or trauma. Greg Marinovich, a Pulitzer Prize-winning photographer who started his career documenting the end of apartheid in South Africa, writes that one of the strongest links among us [photographers] was questions about the morality of what we do: when do you press the shutter release and when do you cease being a photographer?5 Renowned war photographer James Nachtwey has also commented on the morality of his position as witness and photographer: The act of being an outsider aiming a camera can be a violation of humanity. The only way I can justify my role is to have respect for the other persons predicament.6 As journalists working for news organizations, these individuals may not have any legal duty toward their subjects or any legal requirement to obtain informed consent, but the work requires sensitivity to, and consideration of, individuals and their claims to privacy, dignity, and autonomy. Unlike most news organizations, many human rights organizations and NGOs do not have an explicit policy on informed consent.7 However, one or more of the four generally recognized elements of informed consent disclosure, voluntariness, comprehension, and competence are often included in training and field manuals for human rights monitors that provide guidance on interviewing victims of or witnesses to human rights violations.8 Although these manuals generally focus on interviewing techniques and do not discuss photography or video in the context of human rights documentation, the following discussion applies the principles of informed consent for interviewing to the use of photographs and video. As a whole, the elements of informed consent amount to what is required for legal consent, but human rights organizations more often use them to create an environment that is safe and secure and respects the subjects human dignity motivations that answer more directly to the moral claims of informed consent than to legal ones. The following section discusses how training materials for human rights monitoring treat the principles of disclosure, voluntariness, comprehension, and competence.

1. Disclosure
4

FADEN & BEAUCHAMP, A HISTORY AND THEORY OF INFORMED CONSENT , supra note 4, at 15 (discussing the three principles of informed consent: respect for autonomy (as in choice in action without constraint), beneficence (as in do no harm), and justice.) 5 GREG MARINOVICH & JOAO SILVA, THE BANG-BANG CLUB xiv (2000). 6 James Nachtwey, 1986 Statement available at http://www.frif.com/new2002/warp3.html. 7 The majority of NGOs interviewed had no formal policy on informed consent. 8 FADEN & BEAUCHAMP , A HISTORY AND THEORY OF INFORMED CONSENT, supra note 4, at 274.

Several organizations stressed the importance of disclosure in interviews used for human rights monitoring, particularly disclosure of the use and purpose of the information sought. The United Nations Office of the High Commissioner for Human Rights (OHCHR) Training Manual requires interviewers, before asking any questions, to introduce him/herself and the interpreter, explain the mandate of the UN human rights field operation, establish the purpose of the interview, discuss the ground rules for the interview, talk about how the witness may be protected after the interview, and anticipate the use that will be made of the information.9 The Norwegian Institute on Human Rights (NIHR) Manual on Monitoring says that an interviewer should present the mandate of the mission, the purpose of the interview, and how the information will be used. State clearly what you can and can not do in this particular case.10 According to both manuals, disclosure is a precaution that helps to ensure the subjects safety and to establish a relationship with the subject that is honest and respectful of the personal risks he or she might incur as a result of being photographed or otherwise documented. 2. Voluntariness The NIHR tells its monitors to underline that the interviewees participation in the interview is fully voluntary.11 The OHCHR Manual states that witnesses should be able to give permission as to the use of the material, and whether names and details will be cited.12 This mandate extends to photographs. Professor Diane Orentlicher, writing about human rights monitoring, recommends that [a]t some point, the interviewer must ask the witness if she is willing to allow her testimony to be used and, if so, whether she is willing to be identified by name in the report.13 3. Comprehension Training materials emphasize that in human rights monitoring interviews, the interviewee should comprehend the implications of the interview. One human rights monitoring handbook states: [I]t is important that the witness understands the implications of giving his/her testimony and the basis upon which s/he shares his/her information.14 The NIHR manual also requires that interviewers [e]nsure that the victim/witness understands the implications of giving the information.15 Although the secondary literature discusses comprehension less than the other elements of informed consent, interviews with staff at human rights organizations revealed an ongoing concern that the subject understand the implications of being photographed or videotaped. The legal
9

Office of the High Commissioner for Human Rights Professional Training Series No. 7, Training Manual on Human Rights Monitoring 115 (UN: 2001). 10 Marit Maehlum, Manual on Human Rights Monitoring: An Introduction for Human Rights Field Officers (Norwegian Institute of Human Rights: 2001). 11 Id. at 11. 12 Office of the High Commissioner for Human Rights, Training Manual, supra note 9, at 116 (emphasis added). 13 Diane F. Orentlicher, Bearing Witness: The Art and Science of Human Rights Fact-Finding, 3 HARV. HUM. RTS. J. 83, 115 (1990). 14 KATHRYN ENGLISH AND ADAM STAPLETON , THE HUMAN RIGHTS HANDBOOK : A PRACTICAL GUIDE TO MONITORING HUMAN RIGHTS 102 (UK: 1995). 15 Marit Maehlum, Manual on Human Rights Monitoring, supra note 10, at 9.

director of a Hungarian NGO working with people with mental disabilities (hereinafter Hungarian NGO 1) distinguishes consent from understanding: Generally, if I am taking photos of people, I ask them. . . . Most people say yes, and people in institutions rarely receive visitors, so any attention is welcome. But the capacity to understand that these might be used in international reports is a different thing.16 Corrine Dufka of Human Rights Watch (HRW) discussed the difficulties of making sure that individuals who have not had much exposure to media or video understand its potential impact: The issue of informed consent is sticky. How can you get consent from someone who doesnt understand the scope of the use, like the Internet?17 According to David Whitbourn of Amnesty International (AI), the organization will sometimes review the tape to see if they have really understood what they are giving consent to. Sometimes we have situations where they give consent, but we want to be ultra-cautious. We want to make sure that they completely understand.18 He acknowledged that it might be patronizing to second-guess an individuals consent but argues that sometimes this is necessary to keep people safe: These are all tricky decisions, and we have to agonize over them. We have a desire to highlight an issue, but issues are made up of individuals, and security of individuals is our utmost concern.19 4. Competence The final element, competence, arises most often with special populations, including children and people with mental disabilities. However, competence to consent can also be an issue where there is significant trauma involved. Reuters policy acknowledges that consent requires special care in the case of children, and is complicated by other people in particular positions of vulnerability.20 A persons ability to understand the implications of being photographed or videotaped is a function of his or her competence. These four elements of consent, disclosure, voluntariness, comprehension, and competence, appear in human rights training manuals and literature as a kind of de facto informed consent policy for monitoring and documentation. These policies appear to be motivated more by a moral concern for the security, safety, and dignity of the subject than by a concern for legal liability. As the UN training manual for human rights officers admits: A possible conflict of interest is created by the [Human Rights Officers] need for information and the potential risk to an informant (victim or witness of the violation). . . . At a minimum, the action or inaction of HROs should not jeopardize the safety of victims, witnesses or other

16 17

Legal Director, Hungarian NGO 1, Telephone Interview: May 12, 2005. Corrine Dufka, Human Rights Watch, New York (Telephone Interview: May 12, 2005). 18 David Whitbourn, Amnesty International, Geneva (Telephone Interview: April 25, 2005). 19 Id. 20 Corrine Dufka, Human Rights Watch, supra note 17.

individuals with whom they come into contact, or the sound functioning of the human rights operation.21 Thus, the moral obligation to protect the safety of those interviewed or photographed is often more important than a legal requirement of informed consent. As David Whitbourn of Amnesty International put it, In rough terms, legal issues were very much subordinate to the ethical, moral, and security concerns. . . . Yes, there are legal concerns, and we adhere to those, but that is not the end of the story. The more important ones in my view are the ethical concerns.22 B. Legal Considerations The issue of consent for the use of photographs and video fits into the general framework of privacy and defamation law, which varies across jurisdictions. Defamation law protects an individuals interest in his or her reputation. Types of defamation include libel, which is the publication of defamatory statements in tangible form, such as written material, film, and audiotape; and slander, which involves spoken words.23 Privacy is a fundamental human right and is protected by international and regional human rights treaties as well as many domestic constitutions and laws.24 The 1948 Universal Declaration of Human Rights specifically protects privacy of ones personal space and communication, stating: No one should be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks on his honor or reputation. Everyone has the right to the protection of the law against such interferences or attacks.25 Invasion of privacy may include appropriation of a persons name or likeness, unreasonable public disclosure of private facts, intrusion on a persons solitude or privacy (including his or her body or territorial space), intrusion on a persons communications, and portrayal of the person in a false light.26 In many jurisdictions, privacy law includes the protection of personal data, including information such as medical records and credit history.27

21 22

Office of the High Commissioner for Human Rights, Training Manual, supra note 9, at 88. David Whitbourn, supra note 18. 23 ARTHUR BEST & DAVID W. BARNES, BASIC TORT LAW: CASES, STATUTES, AND PROBLEMS 771-828 (2003). 24 International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, 999 U.N.T.S. 171 art. 17 (entered into force Mar. 23, 1976); European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, 213 U.N.T.S. 221 art. 8 (entered into force Sept. 3, 1953); Convention on the Rights of the Child, opened for signature Nov. 20, 1989, G.A. res. 44/24, annex, 44 U.N. GAOR Supp. (No. 49) at 167, art. 16 (entered into force Sept. 2, 1990). For an overview of privacy and international human rights, see generally THE ELECTRONIC PRIVACY INFORMATION CENTER & PRIVACY INTERNATIONAL, PRIVACY & HUMAN RIGHTS 2004 (2004), available at http://www.privacyinternational.org/phr2004. 25 Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. GAOR (1948). 26 KENNETH S. ABRAHAM, THE FORMS AND FUNCTIONS OF TORT LAW 260 (2d ed. 2002); THE ELECTRONIC PRIVACY INFORMATION CENTER & PRIVACY INTERNATIONAL, PRIVACY & HUMAN RIGHTS 2004 (2004), supra note 24. 27 Id.

Photographs and video, like news articles, are protected by copyright law, but the underlying, factual news element itself is not copyrighted.28 The selling of photos or video footage raises the legal issue of image rights, a detailed analysis of which is beyond the scope of this report. News agencies and human rights organizations sometimes buy and sell photographs or video footage, and many human rights organizations provide such media free to news agencies to raise public awareness of particular issues. The following subsections discuss representative examples of the role of consent in privacy law in jurisdictions with different types of legal systems, and they highlight aspects of privacy and media laws unique to particular countries, such as Frances imposition of criminal penalties for invasion of privacy and South Koreas right of publicity. For an excellent overview of privacy and defamation law worldwide, as well as country-specific laws and regulations, see The Electronic Privacy Information Center and Privacy Internationals online report, Privacy and Human Rights 2004.29 1. Common Law Jurisdictions a. The United States The law of privacy varies widely across states, and although some states have not yet recognized a specific right of privacy, the Supreme Court has recognized the right to be left alone as a constitutional right.30 Because privacy torts are relatively recent and infrequently litigated, the law is not clear cut and depends a great deal on context.31 Courts have not ordinarily considered the mere taking of someones photograph without his or her consent an invasion of privacy.32 In addition, courts have not found an invasion of privacy when unauthorized photographs were taken in public places, such as public streets or in public spaces such as a courtroom or sporting event, even if the photographer followed the person and caused him or her emotional distress.33 Courts are more likely to consider the taking of unauthorized photographs an invasion of privacy if the photos were taken in a private place, such as the subjects home, especially if the photographs cause emotional distress.34 Written consent, such as signing a release, is usually sufficient to allow the use of a persons name or likeness in a particular medium. The use of a persons name or likeness in a manner to which the person has not consented, or where the use exceeds the scope of consent, may be actionable if the conditions of such consent are knowingly, purposefully,
28 29

DWIGHT L. TEETER & BILL LOVING, LAW OF MASS COMMUNICATIONS 931 (11th ed. 2004). THE ELECTRONIC PRIVACY INFORMATION CENTER & PRIVACY INTERNATIONAL, PRIVACY & HUMAN RIGHTS 2004 (2004), supra note 24. 30 DWIGHT L. TEETER & BILL LOVING, LAW OF MASS COMMUNICATIONS, supra note 30, at 362; Philip E. Hassman, Annotation, Taking Unauthorized Photographs as Invasion of Privacy, 86 A.L.R.3d 374 3 (2004). In a frequently-cited 1928 dissent, Justice Brandeis noted that the right to be left alone is the most comprehensive of rights and the right most valued by civilized men. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). 31 KENNETH S. ABRAHAM, THE FORMS AND FUNCTIONS OF TORT LAW, supra note 26, at 262. 32 Philip E. Hassman, Taking Unauthorized Photographs as Invasion of Privacy, supra note 32, at 2. 33 Id. at 2, 4. 34 Id. at 3.

and willfully disregarded to such an extent as to produce a wrongful use of plaintiffs name and picture.35 Whether consent has been exceeded is usually a question decided by a jury.36 Only a few cases have dealt with claims of invasion of privacy in the video context. A California court ruled that there was no unlawful intrusion on privacy when defendants videotaped plaintiffs car accident and broadcast footage of the plaintiffs rescue.37 The Nevada Supreme Court ruled that there was no invasion of privacy when the defendant, a member of an animal-rights advocacy organization, videotaped an animal trainer beating animals backstage before a show, where backstage personnel could see what the trainer was doing. The court ruled that because of the non-intrusive nature of the taping process, the less-than-private context in which taping took place, and the defendants motives, the taping was not highly offensive to a reasonable person.38 This ruling overturned a $4.2 million jury verdict for defamation and invasion of privacy.39 These cases demonstrate a high standard for what constitutes an invasion of privacy using video. b. The United Kingdom There is no specific law of privacy as a separate cause of action in the United Kingdom, but the government has ratified the European Convention on Human Rights, which includes a right to privacy.40 Privacy advocates argue that the current privacy picture in the UK is decidedly grim, with an unprecedented number of new laws limiting privacy rights.41 To incorporate the principles of the European Union Data Protection Directive, Parliament approved the Data Protection Act of 1998, which limits the use of personal information stored electronically, including images and sound recordings.42 There is a media exemption to this act, however, for material acquired for journalistic, artistic, or literary purposes.43 The United Kingdom has no specific legislation regulating the conduct of the press, but the Press Complaints Commission (PCC), an independent regulatory body, enforces its own code of practice. The PCC is not established by statute and has no authority to resolve legal disputes, but it can issue its own judgments against media organizations that
35 36

Leonard I. Reiser, Privacy, 62A AM. JUR. 2D PRIVACY 220 (2004). Id. 37 DWIGHT L. TEETER & BILL LOVING, LAW OF MASS COMMUNICATIONS, supra note 30, at 428-29, citing Shulman v. Group W Productions, 18 Cal.4th 200, 74 Cal.Rptr.2d 843, opinion modified, 1998 WL 436054 (July 29, 1998). Although the California Supreme Court held that in this particular case, taking the video footage and then broadcasting it was newsworthy and thus not an intrusion of privacy, defendants use of a secret microphone to record plaintiffs conversation with a nurse was still a violation of privacy. 38 Id., citing PETA v. Bobby Berosini, Ltd. 111 Nev. 615, 895 P.2d 1269 (1995). 39 Id. (The remedy in the United States for tort actions is monetary damages). 40 THE BBC, PRODUCERS GUIDELINES: THE BBCS VALUES AND STANDARDS 119 (2004) [hereinafter PRODUCERS GUIDELINES], available at http://www.bbc.co.uk/info/policies/producer_guides. 41 THE ELECTRONIC PRIVACY INFORMATION CENTER & PRIVACY INTERNATIONAL, PRIVACY & HUMAN RIGHTS 2004: THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND (2004), available at http://www.privacyinternational.org/article.shtml?cmd[347]=x-347-83802. 42 Id. Privacy advocates argue that this law is ironically misused by the government to trample on privacy rights. Id. 43 THE BBC, PRODUCERS GUIDELINES, supra note 42, at 326.

have violated the PCC Code; these judgments require media organizations to print notices that they violated the code.44 The United Kingdom also has defamation and libel law that governs the publication of photographs and video. In determining whether a statement or image is defamatory, courts generally ask whether it exposes the person to hatred, ridicule, or contempt, and whether it might injure the person in his or her office, profession, or trade.45 Pictures can be ruled defamatory, especially when there is a careless use of background shots accompanied by text. Examples of potentially defamatory scenes include a general view of a childrens playground, in which children are recognizable, with a commentary about child abuse; and a general view of a football crowd, in which individuals are clearly identifiable, with a commentary about hooligans.46 The media is also subject to laws protecting the identities of crime victims and witnesses.47 2. Civil Law Jurisdictions: Selected Countries a. France The French legal system is extremely protective of privacy rights. It differs from that of common law countries and most other countries because it classifies invasion of privacy and libel as criminal as well as civil offenses. Article 9 of the Civil Code, which applies to both public and private places, guarantees protection for ones private life, which the courts have found to incorporate a variety of areas, including a persons leisure activities, political opinions, and state of health.48 This right entitles anyone to oppose the dissemination of his or her picture, considered an attribute of personality, without his or her express permission.49 Any time information is obtained unlawfully, it may be an invasion of privacy, even if the information is never published.50 France classifies infringement of privacy as a criminal offense under Articles 226-1 through 226-9 of the Penal Code. It includes taking, recording, or transmitting without consent the picture of a person who is in a private place.51 However, consent is presumed if the subject of the photo was aware of the photographing and did not object.52 It is also an
44

THE ELECTRONIC PRIVACY INFORMATION CENTER & PRIVACY INTERNATIONAL, PRIVACY & HUMAN RIGHTS 2004: THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND (2004), available at http://www.privacyinternational.org/article.shtml?cmd[347]=x-347-83802. 45 THE BBC, PRODUCERS GUIDELINES, supra note 42, at 330. 46 Id. at 333. 47 Id. at 320-22. 48 Act No. 70-643 of July 17, 1970, C. CIV. ART. 9, available at http://www.legifrance.gouv.fr/html/codes_traduits/code_civil_textA.htm. For a general overview of French privacy law, see Embassy of France, Legal & Technical Office of Information & Communication, French Legislation on Privacy (2001), at http://www.info-france-usa.org/atoz/privacy.asp. 49 Embassy of France, Legal & Technical Office of Information & Communication, French Legislation on Privacy (2001), at http://www.info-france-usa.org/atoz/privacy.asp. 50 Id. 51 Ord. No. 2000-916 of Sept. 19, 2000, C. PN. ART. 226-1, available at http://www.legifrance.gouv.fr/html/codes_traduits/code_penal_textan.htm. 52 Id.

offense for anyone to use recordings and documents obtained by unlawful conduct.53 Those who publish a montage made with the words or image of a person without the latters consent may receive a sentence of up to one years imprisonment and a fine of 15,000.54 A widely criticized June 2000 law bans the publication of photos taken, without consent, of individuals who have been arrested and handcuffed.55 b. South Korea South Korea has extended the doctrine of privacy law by recognizing a right of publicity, which refers to the individuals right to control the commercial use of his or her identity.56 Plaintiffs in invasion-of-privacy and defamation tort cases are entitled to compensatory relief for damages resulting from as little as hurt feelings.57 However, there is little case law to help define the scope of the law, because few privacy or defamation cases have been brought in South Korean courts.58 3. Mixed Jurisdiction (Civil and Common Law): Selected Countries a. South Africa The South African Constitution of 1996 guarantees the right to privacy and access to information.59 Section 32 states, Everyone has the rights of access to . . . any information that is held by another person and that is required for the exercise or protection of any rights, but national legislation must be enacted to give effect to these rights.60 The South African Constitutional Court has delivered several judgments on the right to privacy, relying on a mixture of European and U.S. jurisprudence.61 The Court has used two lines of reasoning: first, that the right is rooted in human dignity, and second, that there is an actual or subjective expectation of privacy according to a reasonable person
53

Ord. No. 2000-916 of Sept. 19, 2000, C. PN. ART. 226-3, available at http://www.legifrance.gouv.fr/html/codes_traduits/code_penal_textan.htm. 54 Ord. No. 2000-916 of Sept. 19, 2000, C. PN. ART. 226-8, available at http://www.legifrance.gouv.fr/html/codes_traduits/code_penal_textan.htm. 55 Tell But Dont Show: A new law will change the look of French journalism. 155 TIME EUROPE, June 26, 2000, available at http://www.time.com/time/europe/magazine/2000/0626/frenchlaw.html. 56 THE ELECTRONIC PRIVACY INFORMATION CENTER & PRIVACY INTERNATIONAL, PRIVACY & HUMAN RIGHTS 2004: REPUBLIC OF (SOUTH) KOREA (2004), available at http://www.privacyinternational.org/article.shtml? cmd[347]=x-347-83785, citing H. Nam, The Applicability of the Right of Publicity in Korea, 27 KOREAN J. INT'L & COMP. L. 45, 49 (1999). 57 Id. 58 Id., citing H. Nam, The Applicability of the Right of Publicity in Korea, 27 KOREAN J. INT'L & COMP. L. 45, n.122 (1999). 59 S. AFR. CONST. 14, 32, available at http://www.polity.org.za/html/govdocs/constitution/saconst02.html?rebookmark=1#14. 60 S. AFR. CONST. 32, available at http://www.polity.org.za/html/govdocs/constitution/saconst02.html? rebookmark=1#14. Section 32 states that the national legislation to protect this right a. must provide review of administrative action by a court, or where appropriate, an independent and impartial tribunal; [and] b. impose a duty to the state to give effect to the [above] rights . . . . Id. 61 THE ELECTRONIC PRIVACY INFORMATION CENTER & PRIVACY INTERNATIONAL, PRIVACY & HUMAN RIGHTS 2004: SOUTH AFRICA (2004), available at http://www.privacyinternational.org/article.shtml?cmd[347]=x-34783780.

standard.62 One commentator writes, There seems to be a gap in South African law where the use of someones image falls under a form of breach of personality rights, and where the claim would be neither in the law of defamation nor privacy.63 This claim may be a new cause of action a breach of identity, a term that connotes the uniqueness of the individual.64 b. India Indias Constitution of 1950 does not explicitly recognize the right to privacy. In 1964, however, the Supreme Court recognized an implicit constitutional right to privacy in Article 21, which states, No person shall be deprived of his life or personal liberty except according to procedure established by law.65 Although India does not have a general data protection law, it has a right of personal privacy, actionable in both tort and criminal law.66 The criminal law on defamation contains a public interest exception that has not been imaginatively interpreted by the courts, according to one commentator, resulting in little protection for the media from criminal sanctions.67 The civil law on defamation has not been codified, so the courts use the corresponding rules of the English Common Law.68 In 1994, the Supreme Court of India ruled in the Auto Shankar case that every citizen has the right to protect his or her privacy and that nothing may be published on areas such as family, marriage, and education, whether truthful or otherwise, without the citizens consent, with the exception of materials based on public records and information about public officials conduct when performing official duties.69 This set a precedent in Indian privacy law, because the Supreme Court discussed the right to privacy in the context of the freedom of the press for the first time.70 A growing debate on the limits of investigative reporting has focused attention on the issue of balancing freedom of the press and personal privacy.71 In 2001, investigative
62

THE ELECTRONIC PRIVACY INFORMATION CENTER & PRIVACY INTERNATIONAL, PRIVACY & HUMAN RIGHTS 2004: SOUTH AFRICA (2004), available at http://www.privacyinternational.org/article.shtml?cmd[347]=x-34783780. 63 Greg Hamburger, Image Rights, THE MAIL & GUARDIAN ONLINE, July 1, 2004, at http://www.themedia.co.za/article.aspx?articleid=133089&area=/media_insightlegal_spin. 64 Id. 65 Constitution of India (1949), available at http://www.alfa.nic.in/const/a1.html. 66 THE ELECTRONIC PRIVACY INFORMATION CENTER & PRIVACY INTERNATIONAL, PRIVACY & HUMAN RIGHTS 2004: INDIA (2004), available at http://www.privacyinternational.org/article.shtml?cmd[347]=x-347-83769. 67 Rajeev Dhavan, Tehelka: what next? The Hindu, Sept. 7, 2001, available at http://www.hinduonnet.com/thehindu/2001/09/07/stories/05072523.htm. 68 THE ELECTRONIC PRIVACY INFORMATION CENTER & PRIVACY INTERNATIONAL, PRIVACY & HUMAN RIGHTS 2004: INDIA, supra note 68. 69 R. Rajagopal v. State of T.N, (1994) 6 SCC 63. See also THE ELECTRONIC PRIVACY INFORMATION CENTER & PRIVACY INTERNATIONAL, PRIVACY & HUMAN RIGHTS 2004: INDIA, supra note 68, citing "Failure to Define Law on Privacy Could Cost Society Dear, TIMES OF INDIA, Aug. 26, 2001, available at http://timesofindia.indiatimes.com/articleshow.asp?artid=1912122924. 70 Id. 71 THE ELECTRONIC PRIVACY INFORMATION CENTER & PRIVACY INTERNATIONAL, PRIVACY & HUMAN RIGHTS 2004: INDIA, supra note 68.

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journalists from the web portal Tehelka secretly filmed government officials taking bribes and groping call girls as part of an expos on official corruption in India, sparking a vigorous debate.72 Indias law allows the use of this type of evidence in court, even if it was illegally obtained.73 A similar question on the limits of investigative reporting arose in 2000, when the press used transcripts of tapped phone calls to expose a scandal surrounding fixed cricket matches.74 The above discussion demonstrates that while most jurisdictions do not have specific laws on obtaining consent for the use and distribution of video and other visual material, some countries, such as France, have enumerated specific offenses for libel and invasion of privacy. The examples above demonstrate a substantial variation across jurisdictions, but all of the legal systems discussed here demonstrate a concern for protecting individuals right to privacy. III. Journalism and Human Rights Documentation: Distinct Approaches to Informed Consent

There are significant differences between documentation for journalists purposes and documentation for human rights monitoring or advocacy. Because these differences can affect the nature, necessity, and possibility of obtaining informed consent, it is necessary to treat informed consent within each field separately. The primary purpose of journalism is to inform the public about newsworthy events. Journalists go into a situation to get a picture or story, and then they get out. In contrast, human rights activists are often working for political and social change in conjunction with locals whose participation in such movements puts them in danger of retribution or rejection from the community. But even within the human rights community, there is significant variance as to the scope and purpose of human rights documentation. According to the UN High Commissioner for Human Rights, The principle objective of human rights monitoring is to reinforce State responsibility to protect human rights.75 According to an NGO, the purpose of monitoring is to provide immediate assistance, and to educate and mobilize the public.76 The HURIDOCS Human Rights Monitoring and Documentation Series Human Rights Monitoring guide defines the purpose of monitoring, including the use of

72

Id., citing Mukund Padmanabhan, "Sex, Bribes, and Videotape," THE HINDU , Sept. 8, 2001, available at http://www.hinduonnet.com/thehindu/2001/09/08/stories/05082523.htm. See also Rajeev Dhavan, Tehelka: what next? The Hindu, Sept. 7, 2001, available at http://www.hinduonnet.com/thehindu/2001/09/07/stories/05072523.htm. 73 THE ELECTRONIC PRIVACY INFORMATION CENTER & PRIVACY INTERNATIONAL, PRIVACY & HUMAN RIGHTS 2004: INDIA, supra note 68. 74 Id., citing Manoj Joshi, "Phone-Tap Laws May Trip Cronje Case," Apr. 15, 2000. 75 Office of the High Commissioner for Human Rights, Training Manual, supra note 9, at 87-88. 76 Ripple in Still Water: Reflection by Activists on Local- and National-level Work on Economic, Social, and Cultural Rights, Chapter 4, Monitoring, available at http://www1.umn.edu/humanrts/edumat/IHRIP/ripple/chapter4.html .

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photographic and other recording instruments, as providing a basis for action.77 But other NGOs, such as the Hungarian NGO 1, use most of their photographic material for internal purposes like training and conferences, not for public reports.78 These variations in mission affect the role of informed consent within the human rights community itself. News media organizations approaches can be helpful in informing human rights organizations on the legal issues surrounding privacy and consent that arise in the publication of photos and video. An employee of an international news agency (hereinafter news agency) interviewed for this study has conducted training sessions for NGOs on privacy and image rights. She said NGOs occasionally misuse photos in the process of mobilizing public support for a cause: The difficulty we encounter is that nonprofit organizations take pictures from us and use them in a way they just shouldnt.79 She gave an example of a large, well-known nonprofit organization that used one of the news agencys photos of a Sudanese boy warming by a fire at a refugee campsite. The organization had used the photo in its fundraising campaign, giving the boy the name Jimmy and fabricating a narrative about him to appeal to donors.80 The news agency employee said that she can understand why they [did] it, but it was completely at odds with respecting the persons privacy. . . . Its a process of educating those organizations as well.81 At some NGOs, however, consent policies and concern for privacy can be stricter than the standards used in journalism. Corrine Dufka discussed the differences between her work as a journalist and as a human rights monitor: I used to work in television, and I worked in news and current affairs, and we had certain policies that governed the obtaining of consent and informed consent. One of the things that surprised me when I came to Human Rights Watch was how much stricter these policies were. When you think about it, it makes sense.82 The following discussion draws primarily on interviews with news and human rights organization staff to analyze the standards that journalists and human rights monitors use for consent when using photo and video, highlighting specific challenges these organizations have encountered in formulating these policies. A. Journalism Professional associations of journalists, industry regulatory bodies, and individual media companies have published codes of ethics that include guidelines on consent and privacy. The United Nations Educational, Scientific, and Cultural Organization (UNESCO) issued a Code of Ethics in 1983 based on a meeting of international and
77

Manuel Guzman and Bert Verstappen, Human Rights Monitoring and Documentation Series: What Is Monitoring? 21 (HURIDOCS: 2003). 78 Legal director, Hungarian NGO 1, supra note 16. 79 Employee of an international news agency, (Telephone Interview: May 10, 2005). 80 Id. 81 Id. 82 David Whitbourn, supra note 18.

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regional journalism associations representing 400,000 journalists worldwide.83 UNESCOs Code articulates a set of principles that addresses the publics right to accurate and objective information, journalists professional integrity, respect for the public interest, and respect for privacy and human dignity: An integral part of the professional standards of the journalist is respect for the right of the individual to privacy and human dignity, in conformity with provisions of international and national law concerning protection of the rights and the reputation of others, prohibiting libel, calumny, slander and defamation.84 Legal consent is not generally required for journalists to take photographs or video footage in a public place. Sometimes, camera operators ask for the contact information of individuals photographed or videotaped in public places, but they are not legally required to do so in most jurisdictions if the images or footage are being used for news purposes.85 Camera operators ask for express consent and have a person sign a release form, however, if they are interviewing someone on camera.86 Although not legally required, consent can also serve to protect the integrity and credibility of reporting. For example, critics of the graphic coverage of the tsunami in Asia in 2004 accused news organizations of publishing disaster porn and noted that certain images deprive the grieving of their privacy and the dead of their dignity.87 Although not motivated by legal restrictions, the BBCs Producers Guidelines urge news and factual programs not to show photos of the dead unless there are compelling reasons and says that close-ups of faces or serious injuries should be used very sparingly.88 The Media Council of Tanzania has promulgated a Code of Ethical Practice for Media Photographers and Video that states that journalists should not take pictures of dead people without permission from relatives and should [a]lways take into consideration the culture, myths, beliefs and rituals of the people involved.89 A review of journalistic codes of ethics in every country is beyond the scope of this report, but for a compilation of these codes of ethics, see the International Journalists
83

UNITED NATIONS EDUCATIONAL, SCIENTIFIC, & CULTURAL ORGANIZATION (UNESCO), CODE OF ETHICS: INTERNATIONAL PRINCIPLES OF PROFESSIONAL ETHICS IN JOURNALISM (1983), available at http://www.ijnet.org/FE_Article/codeethics.asp?UILang=1&CId=8320&CIdLang=1. Organizations represented include the International Organisation of Journalists (IOJ), the International Federation of Journalists (IFJ), the International Catholic Union of the Press (UCIP), the Latin-American Federation of Journalists (FELAP), the Latin-American Federation of Press Workers (FELATRAP), the Federation of Arab Journalists (FAJ), the Union of African Journalists (UJA), and the Confederation of ASEAN Journalists (CAJ). 84 Id. 85 Employee of an international news agency, supra note 82. (For example, we wouldnt stop someone grieving after the tsunami for their details, but if we take a great picture of a person at a comic book convention in Miami, we might take those details, that might be used for a client [to whom we sell images]. It would depend. In some jurisdictions, however, it would be an infringement of a persons privacy to show certain images, even for news.) 86 Id. 87 Susan Llewelyn Leach, How to tell story of the dead without offending the living, THE CHRISTIAN SCI. MONITOR, Jan. 19, 2005, available at http://www.csmonitor.com/2005/0119/p11s02-wogi.html. 88 THE BBC, PRODUCERS GUIDELINES, supra note 42, at 130. 89 Media Council of Tanzania, Code of Ethical Practice for Media Photographers and Video, available at http://www.ijnet.org/FE_Article/codeethics.asp?UILang=1&CId=158625&CIdLang=1.

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Network Code of Ethics website.90 Many of the codes of ethics on this website articulate a general principle of privacy, but few contain provisions on informed consent or the use of photos and video specifically.91 This section provides an overview of journalistic approaches to informed consent for photographs and video, highlighting several issues: consent to the scope of use; circumstances under which news media organizations are not required to obtain consent; surreptitious and secret recording; and consent for special populations. It incorporates interviews and relevant provisions from various journalistic codes of ethics but relies heavily on the BBCs 500-page Producers Guidelines.92 Of the sources identified for this report, the Guidelines provide the most extensive information on issues of consent and privacy. 1. Scope of Use News media organizations must ensure that individuals who consent to being photographed or interviewed understand the potential scope of use of the image or footage. Whether in a crisis situation or not, journalists must be sure to make their purpose clear in requesting an interview.93 In a politically volatile situation, the security of those photographed or interviewed may present a serious concern. For example, photos taken by journalists in El Salvador were later used by the U.S. Central Intelligence Agency (CIA) to identify those involved in a particular political movement.94 Corrine Dufka commented that at the time the photos were taken, the subjects did not object to being photographed, but they likely did not understand that the photos would be picked up on the Internet, distributed to security forces, and scrutinized.95 2. Proceeding without consent In journalism, three considerations can qualify an individuals right to privacy: the public interest, location, and the subjects behavior.96 The BBC allows for an exception to its regular privacy policies such as limitations on the use of listening devices, reporting crime details, recording in hospitals, or identifying children when there is a significant public interest involved.97 The BBCs definition of public interest, which comes from
90

International Journalists Network, Codes of Ethics, at http://www.ijnet.org/FE_Article/CodeEthicsList.asp?UILang=1. 91 Id. 92 THE BBC, PRODUCERS GUIDELINES , supra note 42. 93 Bob Steele. Covering the Attack: Crisis Reporting and Respectful Interviewing (2001). Poynter Online, at http://www.poynter.org. (Remember these individuals do not know journalistic conventions such as on and off-the-record. Be clear and fair with these individuals.) 94 Corrine Dufka, supra note 17. 95 Id. 96 THE BBC, PRODUCERS GUIDELINES, supra note 42, at 19. These guidelines do not necessarily apply in countries with extremely strict privacy laws, such as France, where privacy laws apply to public places as well. 97 THE BBC, PRODUCERS GUIDELINES, supra note 42, at 19.

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the UK PCCs Code of Practice, includes [d]etecting or exposing crime or a serious misdemeanor; [p]rotecting public health and safety; and [p]reventing the public from being misled by some statement or action of an individual or organization.98 In order to invoke the public interest exception, however, the PCC requires a full explanation by the editor of why the situation merited the exception. Location may also qualify the right to privacy: people in private places have a greater right to privacy than those in public places.99 News organizations operate under the assumption that if an event is newsworthy and in a public place, it may be recorded legally, regardless of whether consent has been obtained from the individuals involved. Camera operators take photos or footage as events happen, and it is not always feasible or practical to get informed consent of the people in the photos or video.100 Corrine Dufka commented on the considerations involved in taking news photos during a crisis: As a journalist, your job is to get in there and get a picture that tells the story. First, I was taking photos in a crisis, so there was no time. People werent thinking about the pictures. People are in unceremonious poses, with limbs hanging off. There was no time to talk about informed consent. Number two, [I was] . . . trying to spotlight attention on horrific abuses in conflict situations. The importance of getting those pictures out overrides certain issues of the importance of getting informed consent. Also, they were taken in really public places, such as marketplaces, war zones, refugee camps, these kinds of things. If youre taking pictures of people in a hospital, there is more time, then you can ask them.101 In another example from the 2004 tsunami disaster in Asia, a non-German photographer took photos of two German boys in Thailand who had lost their parents in the disaster. The photographer transmitted the photos to a news agency in a third country. Eventually, German media clients of the news agency published the photos. Under German law, it is illegal to record certain types of footage in a hospital, so the guardians of the boys unsuccessfully sued the news agency.102 The news agency employee maintained that the photos were not gratuitous shots of the boys . . . . Under those circumstances, there is a very strong defense for the media to be publishing these pictures.103 As this anecdote demonstrates, news agencies make decisions about using images on a case-bycase basis.104 Dufka says that in order to capture an image in a way that is informative without intruding needlessly on privacy, photojournalists take peripheral photos of many people
98
99

Press Complaints Commission (UK), Code of Practice (1999), at http://www.pcc.org.uk/cop/cop.asp. THE BBC, PRODUCERS GUIDELINES , supra note 42, at 19. 100 Employee of an international news agency, supra note 82. 101 Corrine Dufka, supra note 17. 102 Employee of an international news agency, supra note 82. 103 Id. 104 Id.

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in open settings, such as a group of people going through a checkpoint, so that individual people do not feel targeted.105 In private places, however, individuals are entitled to greater privacy protections. The UK PCC provides, It is unacceptable to photograph individuals in private places without their consent, specifying that private places are public or private property where there is a reasonable expectation of privacy.106 The PCC forbids the use of long-lens photography to take pictures of people in private places without their consent.107 Criminal or seriously anti-social behavior is less entitled to privacy, since it is in the public interest for news organizations to report it.108 News organizations should still take precautions to obtain consent for photos or video taken in private places, however. The BBC Guidelines state that when reporters accompany police or public authorities on raids into peoples homes, for example, they should be careful to obtain written consent or verbal consent on camera, either in advance of filming or as soon as convenient during filming or immediately thereafter.109 Program makers should state that they are filming for the BBC and why. If consent is refused, reporters should withdraw immediately, unless there is a strong public interest, such as reasonable evidence of criminal activity.110 The use of webcams also raises the issue of consent. Individuals using webcams must have a sign informing people that the camera is there, the purposes for which the images will be used, and who will have access to them. This procedure has been found to constitute implicit informed consent.111 The BBC Online Editorial Guidelines provide that producers must provide notice of a webcam only if the individuals are likely to be identified from the webcam output, such as at sporting events.112 Staff responsible for the webcam should take reasonable steps to warn members of the public that BBC is operating a webcam within a defined area. Notice can be as simple as a line of text on a ticket to a sporting event.113 3. Secret Recording Media organizations generally prohibit surreptitiously recording conduct. Although it is not necessarily unlawful, they consider it unethical. The United Kingdoms PCC Code of Practice prohibits all use of secret listening devices.114 Surreptitious recording should certainly not be used simply to add drama to a report, according to the BBCs Guidelines.115 The New York Times handbook on ethics prohibits the recording of
105

Corrine Dufka, supra note 17. Press Complaints Commission, Code of Practice, supra note 109. 107 Id. 108 THE BBC, PRODUCERS GUIDELINES , supra note 42, at 19. 109 Id. at 160-61. 110 Id. at 160-61. 111 THE BBC, ONLINE EDITORIAL GUIDELINES (2004), available at http://www.bbc.co.uk/info/policies/producer_guides/pdf/online_guides.pdf. 112 Id. at 13. 113 Id. 114 Press Complaints Commission, Code of Practice, supra note 109. 115 THE BBC, PRODUCERS GUIDELINES, supra note 42, at 23.
106

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conversations without the prior consent of all parties . . . . Even where the law allows recording with only one party aware of it, the practice is a deception.116 Some companies or organizations allow limited exceptions to this prohibition. For example, the New York Times allows rare exceptions in places where secret recordings are legal, and the Radio-Television News Directors Association & Foundation (RTNDA) in the United States allows surreptitious newsgathering techniques . . . only if there is no other way to obtain stories of significant public importance and only if the technique is explained to the audience.117 The Press Council of India writes that the press may use secret recording where necessary to protect the journalist in a legal action, or for other compelling good reason.118 The BBC has a detailed policy on the use of surreptitious recordings, allowing it for only the following purposes: As an investigative tool to explore matters which raise issues of serious anti social or criminal behaviour, where there is reasonable prior evidence of such behaviour. To gather material, which could not be gathered openly, in countries where the local law appears inimical to fundamental freedoms or democratic principles or represents a serious impediment to responsible programme-making. As a method of social research where no other methods could reasonably capture the behaviour under scrutiny. In such cases it will be usual practice to disguise the identities of the individuals concerned. For purely entertainment purposes where the secret recording and any deception involved are an intrinsic part of the entertainment. In these cases it will always be necessary to obtain the consent of the individual recorded afterwards. The use of long lenses can be a legitimate technique which may sometimes have the effect of recording people who do not know the camera is present. The deliberate use of such lenses, or of small video cameras, to conceal the camera from targeted individuals being photographed counts as surreptitious recording and is subject to these guidelines.119 The BBC has an expansive definition of what constitutes surreptitious recording; it includes the use of video cameras or digital video recorders to give the impression of recording for purposes other than broadcasting.120 The Guidelines note that recording for broadcasting that is performed openly but without declaring its end purpose . . . may be
116

THE NEW YORK TIMES, ETHICAL JOURNALISM: A HANDBOOK OF VALUES AND PRACTICES FOR THE NEWS AND EDITORIAL DEPARTMENTS 10 (2004), available at http://www.nytco.com/pdf/NYT_Ethical_Journalism_0904.pdf. 117 Id.; Radio-Television News Directors Association & Foundation (RTNDA) (U.S.A.), Code of Ethics & Professional Conduct (2000), at http://www.rtnda.org/ethics/coe.html. 118 Press Council of India, Norms of Journalistic Conduct, available at http://www.ijnet.org/FE_Article/codeethics.asp?UILang=1&CId=158581&CIdLang=1. 119 THE BBC, PRODUCERS GUIDELINES, supra note 42, at 23 (internal citations omitted). 120 Id. at 24.

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preferable to recording which is entirely concealed but is still considered surreptitious recording.121 BBC program makers wishing to carry out surreptitious recording must have advance editorial approval and adhere to strict documentation requirements about their recording, regardless of whether the material gathered is broadcast.122 The BBC also distinguishes between the decision to record and the decision to transmit, and editors must be satisfied that recorded material meets the criteria for permissible secret recording before it may be transmitted.123 In investigating crime and anti-social behavior, the BBC allows the use of hidden cameras or microphones on private property only where prime facie evidence exists of crime or of significant anti-social behaviour by those to be recorded and the programmer can show why an open approach would be unlikely to succeed.124 If the recording is made in a private place, the justification for any surreptitious recording will have to be greater.125 Thus, as the BBC and other industry guidelines demonstrate, secret recording may only be used in journalism under very limited circumstances.

4. Special Populations and Consent a. Individuals with mental disabilities To the best of our knowledge, no industry guidelines or news-organization manuals provide specific information on obtaining consent from people with mental disabilities. b. Children In every jurisdiction, children are entitled to greater privacy protection than adults, and editors must demonstrate an exceptional public interest to override the normally paramount interest of the child. 126 Program makers must strike a balance between the competing interests of the child, the parent, and the audience as a whole. To protect the privacy of children who are photographed or videotaped, industry guidelines and newsorganization manuals provide detailed policies for obtaining consent, explanations of
121 122

Id. Id. 123 Id. 124 Id. at 26. 125 Id. at 27. 126 Press Complaints Commission, Code of Practice (1999), supra note 109. See also Radio-Television News Directors Association & Foundation (RTNDA), Code of Ethics & Professional Conduct, supra note 130 (Exercise special care when children are involved in a story and give children greater privacy protection than adults.).

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privacy laws affecting children, and rules for depicting children involved in illegal activities or legal proceedings. The BBCs Producers Guidelines note that the younger or more vulnerable the child, and the more sensitive the subject matter, the more likely it is that consent will be essential.127 The BBC urges: A childs own consent should always be sought about being interviewed or involved in programmes and the childs refusal to take part should not be overridden. Explanation to children should be in a language and terms that they can understand. In deciding when a child can give consent, the stage of development and degree of understanding as well as chronological age should be taken into account. Most children over the age of fourteen and some over the age of seven will have the necessary understanding.128 Industry guidelines urge reporters to consider carefully the impact of footage depicting children, regardless of whether they have secured parental consent.129 The BBC justifies the use of photos or interviews of children where parental consent has been refused only if the item is of sufficient public importance and the childs appearance is absolutely necessary.130 If program makers want to highlight anti-social or criminal practices that are carried out by children, the general rule is that individual children will not be identified, even if the parents have consented to the childs being photographed or interviewed.131 Even if there is a strong public interest in identifying the child concerned, the BBC Producers Guidelines cautions that the longer term interests of the child may argue for anonymity.132 Many jurisdictions have special privacy laws designed to protect children involved in legal cases. The Media Council of Tanzania prohibits the taking of photographs of juvenile defendants.133 In the United States and parts of the United Kingdom, the media may not release any material leading to the identification of a witness, defendant, or other party under eighteen in juvenile court proceedings, including photographs of any such youth, or his or her name, school, or address.134 The United Kingdoms PCC Code states, Particular regard should be paid to the potentially vulnerable position of children who are
127 128

THE BBC, PRODUCERS GUIDELINES, supra note 42, at 142. Id. 129 Id. at 143. See also Al Tompkins. Guidelines for Interviewing Juveniles (1999), Poynter Online, at www.poynter.org/content/content_view.asp?id=4571. 130 THE BBC, PRODUCERS GUIDELINES, supra note 42, at 143. 131 Id. at 144. Parental consent may not be a sufficient reason to identify a child if the childs long term future would be better served by anonymity. Id. 132 Id. 133 Media Council of Tanzania, Code of Ethical Practice for Media Photographers and Video, supra note 92. 134 THE BBC, PRODUCERS GUIDELINES, supra note 42, at 145. In contrast, in civil proceedings in Scotland, a child can be identified unless the identification is barred by a court order. Although identification may be legally permissible, there may be other ethical or editorial considerations pointing towards preserving the childs anonymity. Id.

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witnesses to, or victims of, crime. This should be interpreted as restricting the right to report judicial proceedings.135 Special rules also apply in sex cases involving minors: news organizations may not report the identity of the victim or the adult involved.136 c. Victims of Sex Crimes Many codes of ethics prohibit journalists from photographing or identifying victims of sexual assault.137 The UK PCC Code states, The press must not identify victims of sexual assault or publish material likely to contribute to such identification unless there is adequate justification and, by law, they are free to do so.138 In South Korea, the journalism standards are more protective; the press may not provide photographs, names, or addresses of victims of sexual assault. Furthermore, even if an address is not given directly, any information leading to the inference of the victims address, such as a case in which the culprit is identified with the remark, he assaulted a woman of his village, or in which the location of the victims office is given or the names of her relatives are identified is also subject to control.139 Although the BBC Guidelines and other industry policies are not legally binding, they demonstrate a strong industry standard of determining consent for the use of photo and video in journalism, including when to proceed without consent, circumstances under which it is acceptable to use secret recording, and determining consent for special populations. B. Human Rights Documentation This Section examines human rights and other NGOs approaches to obtaining informed consent for photographs and video. Although all of the organization representatives interviewed said that informed consent was an important issue that they dealt with regularly, most of the organizations did not have formal or written policies governing it. For example, one interviewee from a high-profile organization that works with refugees (hereinafter refugee organization) said that the organization does not have a formal written policy but relies on internal, informal guidelines that are in the process of being formalized.140 When visits by photographers or the media are anticipated, the refugee organization gives refugees a general briefing on photographer and media visits and explains the goals and intentions of the interviewers or photographers before they begin. The organizations internal guidelines state that any refugee or asylum seeker who
135 136

Press Complaints Commission, Code of Practice (1999), supra note 109. Id. 137 Media Council of Tanzania, Code of Ethical Practice for Media Photographers and Video, supra note 92. 138 Press Complaints Commission, Code of Practice (1999), supra note 109. 139 South Korea Press Code, Code of Ethics, available at http://www.ijnet.org/FE_Article/codeethics.asp? UILang=1&CId=8356&CIdLang=1. 140 Interview with employee of an international refugee organization, May 25, 2005. Interviewee asked to remain anonymous. The formalization of an informed consent policy was spurred by an internal survey that asked staff if they thought they would benefit from a cohesive set of rules for taking and using photographs. This inquiry led the organization to create its own guidelines.

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expresses verbally or physically that they do not wish to be photographed will not be photographed.141 The refugee organization also protects the identity and blurs the face of any asylum seeker who has been the victim of violence, kidnapping, rape or sexual abuse or has HIV/AIDS.142 The policy is designed not to address concerns about legal liability but to protect victims from the risk of alienation they face from their communities. In choosing photographs, the photo library edits all images, carefully choosing them based on internal guidelines to avoid publishing images thought to be exploitative or not true in their portrayal of the subject in the photo.143 A second Hungarian organization working with people with mental disabilities (hereinafter Hungarian NGO 2) also uses informal guidelines, which include a directive to ask for verbal permission to photograph and obtaining written consent to use the material for publication, including digital and web publication.144 A third organization in eastern Europe working with people with mental disabilities (hereinafter eastern Europe NGO) employs a strict but informal policy based on the organizations guiding ethical principles, which all employees must sign with their employment contract. This policy makes it a duty to ask the people we work with for consent in any activity which may influence their lives. This also refers to gaining consent prior to making photos or video and again gaining consent prior to making them public.145 Some organizations, particularly those that carry out large-scale publicity campaigns, pay closer attention to the legal elements of informed consent. David Whitbourn of Amnesty International (AI) notes that [w]here there are legal standards, AI will adopt the most stringent of these standards, to make sure there is not anything being done that is illegal.146 Corrine Dufka also notes that she is more careful [about consent] now that Im at Human Rights Watch.147 For other organizations, publicity campaigns require attention to moral bases for consent. According to the Communications Guide of the Red Cross: All documentary photographers have an obligation to protect the dignity of the people they photograph. Talk to people before you photograph them; ask their permission; always respect a refusal. As publicists, we have a duty to publicize the plight of vulnerable people, but without highlighting their distress or portraying them as helpless victims. This is a difficult balance to strike and it is quite possible to be done in the editing/selection stage rather than on the shoot itself..148
141 142

Id. Id. 143 Id. 144 Director, Hungarian NGO 2, (Telephone Interview: April 26, 2005). 145 Employee, eastern Europe NGO, (Telephone Interview: April 11, 2005). 146 David Whitbourn, supra note 18. 147 Corrine Dufka, supra note 17. 148 International Federation of Red Cross and Red Crescent Societies, The Visual Message, in COMMUNICATIONS GUIDE, 2003 ed., at http://www.ifrc.org/publicat/commsguide/html/Six/CHAPTER6b.HTM.

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Although journalism and human rights advocacy have different goals and approaches, many of the same special circumstances and complications affect the need for informed consent. These factors shape the principles that news and human rights organizations apply to the requirement of gaining consent to the scope of use, circumstances under which news media organizations are not required to obtain consent, secret recording, and the challenges of working with special populations. 1. Scope of Use Like news organizations, human rights organizations consider it essential to make sure that individuals being photographed understand the potential scope of use for the image or footage. Disclosure of the potential use and purpose of photos and videos taken, and consent to these uses, enables those obtaining these images to avoid breaching subjects confidentiality, trust, and safety. One human rights monitoring handbook stresses the importance of ensuring that the witness understands the implications of giving his or her testimony. It must be established whether the witness is prepared to give information only as background for the purposes of a report in which the witness is not named; or prepared to give the information in the form of a signed statement; and possibly, to give evidence at a later trial or formal enquiry.149 Professor Orentlicher emphasizes, Early on, the interviewer should make clear that the final product of the interview will be a public report.150 The UN Office of the High Commissioner for Human Rights instructs its human rights officers to ask persons they interview whether they would consent to the use of information they provide for human rights reporting or other purposes. If the individual would not want the information attributed to him or her, s/he might agree that the information may be used in some other, more generalized fashion which does not reveal the source.151 All of these precautions are for the purpose of protecting the subjects safety. For this reason, the UN manual finds cameras and videos particularly problematic because of the risk of retaliation created when a victim is recognizable. Even if permission is obtained to take a photo, the witness should be asked about publishing or otherwise disseminating the photo.152 According to the United Nations: Video recording is more dangerous for interviews, because they [sic] will inhibit obtaining information and will place the witness at considerable risk, if found and confiscated. Video recording may be somewhat more useful in recording demonstrations or similar public events, but creates security risks.
149

KATHRYN ENGLISH & ADAM STAPLETON , THE HUMAN RIGHTS HANDBOOK : A PRACTICAL GUIDE TO MONITORING HUMAN RIGHTS, supra note 14, at 102. 150 Diane F. Orentlicher, Bearing Witness: The Art and Science of Human Rights Fact-Finding, supra note 13, at 115. 151 Office of the High Commissioner for Human Rights, Training Manual, supra note 9, at 90. 152 Id.

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It is important to keep in mind that in some cases the video camera may, in fact, precipitate an event or demonstration.153 Some organizations limit the scope of use out of concern for the dignity as well as the safety of the subject. An international humanitarian aid organization interviewed pointed out that when dealing with prisoners of war, the [Third] Geneva Convention [on Prisoners of War] forbids exposing them to public curiosity or humiliation.154 The organization has taken this to mean that films and photographs should not be publicized with the intent of humiliating a prisoner or even putting him or her in danger in their country of origin . . . . We would therefore refrain from using photos or films of prisoners that could possibly be humiliating or endanger them.155 Concerns about the potential impact on subjects safety and dignity make it critical that human rights monitors ensure that subjects understand the scope of use and distribution of the video or visual material. 2. Proceeding without consent In some circumstances, it may be impossible or unnecessary to get informed consent. When there is an applicable legal standard, it delineates these circumstances. However, for human rights organizations that take moral bases for consent seriously, decisions about when consent is unnecessary or what to do when obtaining consent is impossible are more complex. For example, although Amnesty International has and uses written consent forms, there are situations where obtaining written consent is not appropriate. Sometimes we are talking to an indigenous person in a particular country who might not understand those languages [the consent form is written in] or they might be intimidated by those languages. But it is our duty to explain to people as fully as possible, and we tend to do this on camera as well so we can have people look at it when we get back, because one of the issues is, culturally, when you are explaining something, does somebody understand it in the way that youre explaining it, particularly in dealing with people who havent had as much exposure to media or video.156 AIs solution to this problem is not to proceed without consent but to have people with specialized knowledge, such as country experts, psychologists, and lawyers, examine the footage and make a decision. Whitbourn acknowledges, There have been circumstances

153

Id. at 114. Interview with international humanitarian aid organization, (June 4, 2005). The respondent added that article 13 stemmed from the experiences of army personnel and POWs during WWII who suffered from public curiosity and humiliation. 155 Id. 156 David Whitbourn, supra note 18.
154

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in which we havent used the footage, because we believe it will have a negative effect on the person interviewed.157 The refugee organization interviewed takes a different approach to the same dilemma with photographs of refugees. The photo editor for the organization, who asked to remain anonymous, observed: [T]here is no way to be sure that every refugee, having had the intentions of the photographer and agency explained to them, will understand the implications of having their face on the internet or in the global media. . . . [I]f a photographer working for a UN agency in Angola explains to a returned Angolan refugee who has spent his life in a remote refugee camp near the DRC /Angola border that she would like to photograph his life and the life of the refugee camp to inform people around them of their plight, can we truly consider that informed consent? While the refugee organization tries to obtain consent beforehand and looks carefully at its pictures before publication, the organizations position is that requiring the photographer to get individualized consent is not necessary: Along with being time consuming, this is highly counter-productive to someone who is trying to move about unnoticed to capture the essence of life in this community. 158 The difficulties of guaranteeing consent extend to the photo editors as well: [I]it would be very difficult for the photo editor . . . to be positively sure that all of the [individuals] appearing in the 25,000-some photographs that come across her desk every year were properly informed of how their images will be used.159 Although the refugee organizations approach diverges from that of AI, which would rather err on the side of caution when it comes to informed consent, both organizations have had to handle situations where consent was impractical, unnecessary, or impossible to obtain.160 3. Secret Recording The UN training manual explicitly forbids secret taping: The tape recorder should not be introduced until after the interviewer has established his/her credibility and reassured the witness about the objectives of the interview and the confidentiality of the information. The witness should be asked whether s/he would permit tape recording, so as to assist the interviewer in recalling the information. There should never be a hidden tape recorder.161
157 158

Id. Employee, Refugee Organization, (Telephone Interview: May 25, 2005). 159 Id. 160 David Whitbourn, supra note 18. 161 Office of the High Commissioner for Human Rights, Training Manual, supra note 9, at 114.

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For other organizations, the issue is more complex. David Whitbourn explains that AI does not use any secret filming, partially because of the issue of informed consent, but also because it is a minefield.162 He believes that there are a number of issues that could be highlighted by covert filming that may justify them carrying out such filming. The organization discusses these instances on a case-by-case basis, but Whitbourn has not ruled out that there may be cases where it is wholly overwhelming and justifiable that we will do [secret taping.] But as yet, we havent hit that point . . . . We do consider it, but we have not yet broken that official policy.163

4. Special Populations a. Individuals with Mental Disabilities Organizations working with people with mental disabilities often find that their clients lack the legal capacity within domestic law to make these [consent] decisions for themselves.164 According to the legal director of Hungarian NGO 1, almost all people in institutions in central and eastern Europe (and central Asia) are under guardianship. Under domestic law, they do not have the legal capacity or legal ability to refuse anything because they are non-people in the eyes of the law.165 Under these circumstances, [e]ven if they consent, its meaningless. . . . [P]eople in a psychiatric facility dont have the power to consent to anything, because of the power dynamic. You have no control over any aspect of your life. If you are asked to do anything, you do it. If asked to be photographed, you do it. Thats not what consent is about.166 The main concern for this NGO is the capacity of people with mental disabilities to understand and consent: How do you gain consent from people who might have a mental disability? Some people are capable of giving consent and understand completely. Others dont. That is a question.167 Hungarian NGO 2 echoes these concerns: In our case, it is more difficult to determine whether the client understands. . . . [S]ometimes clients and they all have intellectual disabilities say yes to everything. 168 For the third eastern European organization, getting informed consent is a way to empower their clients.

162 163

David Whitbourn, supra note 18. Id. 164 Legal director, Hungarian NGO 1, supra note 16. 165 Id. This was confirmed by an interview with an employee of another Eastern European-based organization working with people with mental disabilities. The employee said that a person under guardianship cannot decide for herself about giving consent. This decision is made by the guardian. Usually we ask the person for consent and then inform the guardian. Eastern Europe NGO, supra note 174. 166 Legal director, Hungarian NGO 1, supra note 16. 167 Id. 168 Director, Hungarian NGO 2, supra note 173.

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Basic human rights and freedoms [and the] possibility of choice and decision making are basically nonexistent in institutional settings. Our goal was to empower people to participate more actively in all aspects of their lives. While they were living in institutions, no one ever asked them for consent for anything, so for us, gaining consent was not an option but an obligation.169 Amnesty International involves guardians in the process of deciding whether consent has been given. In dealing with people with mental disabilities, . . . we talk to people who are closest to these people. If someone is considered under law to not be responsible for their actions, such as a child, or person with a disability, do they have a guardian, or somebody who acts as a guardian for them, and can they give us insight into the kind of permission or informed consent that we can get from this person? That plays a part as well. In each of these situations, we dont set ourselves up to be arbiters on this, but we would go through a review process.170 Hungarian NGO 2 has found guardians to be more of a problem in securing clear consent for its clients than a solution. A new problem we encountered was whether the parents approve. . . . We deal with adults, but the parents are still there. . . . We have photos still in our possession without an approval or written approval. Or, in a particular situation or year, a client would give her consent and then two months later change his or her mind. That is also the specific challenge of this target group. That makes it difficult because you think you can use it, but then the parent or the client comes up and doesnt want to use it. This makes it hard when you think about formal procedures. He or she thinks that its fine, but by the time you publish it, the person is not fine. That is why its difficult for us to formalize it.171 The eastern European Organization also uses guardians and family to help its clients make informed decisions prior to taking photographs or video, but only at the behest of its clients. Since our clients are persons with intellectual disabilities, we usually ask them to invite relevant people in their lives for such meetings. Together we discuss the subject and explain why we want to make the photos or video and what they will be used for, and if the person agrees to participate, he signs a consent [form]. Prior to publishing the materials, we again meet with the person and once more ask his or her consent to publish.172
169 170

Employee, Eastern Europe NGO, supra note 174. David Whitbourn, supra note 18. 171 Director, Hungarian NGO 2, supra note 173. 172 Employee, Eastern Europe NGO, supra note 174.

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Some organizations, when they cannot get consent, choose to blur faces. However, Hungarian NGO 1 points out that some people would argue that that is really dehumanizing and really worse than the possible violation of showing someones face, because it shows that people with disabilities are faceless people. . . . Weve never blanked out the faces. Then again, in publications, weve tried to not show peoples identifying features. We have a publication about cage beds, and most of the photos are of the beds without people inside them. One has a photo with a person but his face is turned away. Having said all of that, the other side of me says, in terms of action, there is nothing better than photography or even video at getting the message across.173 b. Children The UN training manual makes it clear that children are a special case when it comes to consent: A child perceives the world very differently from an adult. The interviewer should keep in mind this difference and should approach the interview differently according to the age, maturity and understanding of the child.174 David Whitbourn discussed a situation in which the organization was filming inside an orphanage in Nepal. The AI group asked the head of the orphanage and the staff who worked with the kids to give [AI] their assessment of the implications of showing any footage of the orphanage or any footage of the children, and the orphanage assured them that it didnt present a security threat to the kids as a whole.175 Nonetheless, AI took it upon itself to disguise some of the identities of the children, based on their . . . [backgrounds], what they had been through before they got to the orphanage, and whether, for example, their parents had been killed as a result of involvement in some action, suggesting a risk that might extend to the child; in such cases, AI disguised the childs identity.176 Child soldiers, because of the criminal nature of their activities, are a particular challenge. Amnesty International finds that getting consent from children is a massively complex area. It is AIs policy never to identify children, especially those who could be involved in criminal activities.177 For child soldiers, AI will do whatever it takes so that they cannot be identified. It may be that we film it from far away so you cant see them, or if we are offered footage from someone else, we blur the faces in there. Or if there is writing on a t-shirt, well blur that, or a distinctive item of clothing.178 David Whitbourn recalls an instance in which AI had footage that illustrated how many children were being forced into conflict. It illustrated the scale.179 He described the scene.
173 174

Legal director, Hungarian NGO 1, supra note 16. Office of the High Commissioner for Human Rights, Training Manual, supra note 9, at 125. 175 David Whitbourn, supra note 18. 176 Id. 177 Id. 178 Id. 179 Id.

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There was a parade ground of children who were drilling, and we had to go through individually and blur each face. It took us a long time to do that, but its only fair that we protect the identities of children. Part of the issue around all this is that they have not given informed consent to fighting in the first place, let alone using their image on TV afterwards. So we would not tend to use film of children in these situations.180 Human Rights Watch adheres to a similar policy for child soldiers: If [we had] a close-up photo of a child, then we wouldnt use it, but in a big photo with lots of kids sitting around, we would use that, as long as we didnt go into particulars of crimes they did.181 Corrine Dufka stated that when dealing with children, she would always, if possible, ask permission from the parents or caregivers. But in the case of child combatants, How could I ask their parents? They havent been reunified with them. Im not going to not interview them just because I havent asked their parents. Its not always possible. 182 c. Victims of Sex Crimes Victims of sexual assault also pose a challenge to informed-consent policies. Human Rights Watch has a policy never to show the face of a woman rape victim. There are women who dont give a damn. They are willing to be photographed. But we still wont do it.183 Although this second-guessing might be considered patronizing, HRW takes the view that it is taking precautions for the womens safety. Dufka commented: Sometimes local papers download photos. Sometimes the woman is talking to a foreign woman and thinks that the information might stay in the foreign world, but then a boy she knows standing near her might still be able to see the photo. There are some women who would allow people to see it, but most often the women we are talking to are very uneducated women. They cant read or write.184 Amnesty International has also addressed this issue, as well as the issue of whether to show the faces of children born as a result of rape. [W]e debate whether to show the baby born as a result of rape. Weve had plenty of discussions around should we use this, should we not use this, (a) on grounds of taste and decency, (b) on grounds of security could the people who raped her go back and threaten her or her child again? Whitbourn described other ways that AI might provide additional security in depicting children born as a result of rape. [S]ay we dont identify the area, and that provides an additional degree of security, or we say that the footage may have been filmed six months or a
180 181

Id. Corrine Dufka, supra note 17. 182 Id. 183 Id. 184 Id.

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year ago, so maybe things will have changed sufficiently, and the baby will look sufficiently different for the risks to be different, or the mother has moved, or the political situation has changed so they are no longer at risk as they were.185 AIs policy is to evaluate the risk to the people involved and to decide whether or not to use the picture at all or to use it and disguise the identity. All of those are issues that we go through, but ultimately it comes back to the risk of the person or people involved. If that risk is perceived to be there, then we wont use it.186 IV. Conclusion: Toward Developing an Informed Consent Framework for Human Rights Documentation

Ideally, informed consent should be intentional, substantially non-controlled, and based on substantial understanding.187 But each of these elements is fraught with difficulty in the real world of human rights documentation. Despite common themes and practices, it is far from settled how, when, and why informed consent should be obtained by journalists and human rights monitors. Although the elements of informed consent disclosure, voluntariness, comprehension, and competence are often honored, there is no uniform interpretation of these elements. Each element can mean a different thing at a different time to a different group, depending on the groups goals and values. Most organizations recognize that there are populations for whom obtaining consent is problematic children, people with mental disabilities, and victims of sexual assault but they disagree on what level of consent is required and when it is permissible to proceed without it. Where there is a clear legal duty, most organizations obey the law. More often, however, there is no legal standard to guide behavior and efforts to obtain consent rest on largely unarticulated moral and ethical principles. This is problematic to the extent that, as Professor Orentlicher points out, no asset is more important to a human rights NGO than the credibility of its fact-finding and, in particular, its reputation for meticulous methodology.188 To improve the credibility of documentation and ensure the safety and dignity of subjects, we propose a first step toward an informed consent framework for the use of photos and video by the human rights community. The medical field has grappled with informed consent issues extensively and, while the concerns of doctors for their patients are not identical to the concerns of journalists and human rights monitors for their subjects, their practices are useful as a starting point. There are at least three possible standards that physicians can use to determine the level of disclosure of information that is required to be able to say that the patient is capable of giving informed consent to medical treatment. The professional practice standard is determined by the relevant customary practices of the profession. The reasonable person
185 186

David Whitbourn, supra note 18. Id. 187 FADEN & BEAUCHAMP, A HISTORY AND THEORY OF INFORMED CONSENT, supra note 4, at 298. 188 Diane F. Orentlicher, Bearing Witness: The Art and Science of Human Rights Factfinding, supra note 13, at 85.

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standard looks to what the reasonable person would want to know. The subjective or individual standard, by contrast, looks to what the particular individual subject would want to know.189 Examining each of these as a possible standard for the human rights community provides helpful guidance for finding a practice that will best serve the communitys unique needs. A professional-practice standard of informed consent, applicable to, and used by all human rights organizations, would standardize practices and eliminate any question about whether a groups pictures were taken in an appropriate environment of consent. This would make it easier for groups especially those particularly concerned about consent to exchange footage, pictures, and other information. However, a rigid set of practice standards may ultimately undermine the ability of groups to respond flexibly to the multitude of circumstances they will inevitably face. As Corrine Dufka pointed out, deciding when informed consent has been given is, ultimately, a judgment call, based on the level of education of the person, and the level of danger as well.190 Other factors that come into play are the brutalness of particular regimes and their willingness to target people compared to places where violence is less intense or more random.191 These are not the kind of factors that fit well into a rigid professional standard. At the same time, with no uniformity, it is easy for less conscientious groups to completely disregard the concerns underlying informed consent at the cost of jeopardizing subjects or undermining the credibility of other organizations that follow ethical principles of consent. The reasonable-person standard offers more flexibility to decide about consent on a case-by-case basis but may be difficult to implement given the nature of the circumstances and the cultural differences that often exist between the subject and the interviewer or photographer. News organizations that operate all over the world are subject to the laws of multiple jurisdictions, depending on where images or video footage are obtained and transmitted. The news-agency employee remarked that she cannot just apply one set of laws and be in the clear.192 She said that when we go back to the basic principles, such as respecting the basic dignity of peoples, and what is actually fair under the circumstances, then we arrive at the right solution, or, at least, . . . an arguable case, even if we are technically non-compliant.193 It would also be very difficult to develop a reasonable-person standard that could realistically encompass all peoples in the world. Ultimately, a reasonable-person standard would break down into subcategories like a reasonable refugee or a reasonable child soldier. These subcategories are not only infinite in possibility, but also require a great deal of oversimplification. On some level, it is absurd to speak of a reasonable victim of torture. At the same time, human rights journalists and photographers need a reference point for deciding when the elements of consent are required and when they have been met. Having a reasonable-person standard is one way to conceptualize this reference point and
189 190

FADEN & BEAUCHAMP, A HISTORY AND THEORY OF INFORMED CONSENT, supra note 4, at 30. Corrine Dufka, supra note 17. 191 Id. 192 Employee of an international news agency, supra note 82. 193 Id.

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would allow monitors and photographers to make decisions in an informed and consistent way. An individual standard would give individual monitors or photographers the most discretion. For journalists or photographers who are interacting with the same community for an extended period of time or returning repeatedly to the same hospital or prison, it may make sense to allow them to decide each case subjectively based on their interactions with individual subjects. But often human rights abuses are being documented on the spur of the moment, and the subjects are strangers never to be seen again.194 Without more specific guidelines or standards, allowing the informed consent decision to be entirely subjective carries risks. The safety, dignity, and privacy issues at stake are sometimes at odds with the motives of the photographer or monitor seeking a story. Without a legal or ethical framework to guide the decision maker, individuals may be deprived of their human rights in the name of bearing witness. Although none of the three standards alone is sufficient as a framework for informed consent in the human rights community, a combination approach may provide a helpful path forward. Human rights monitors and photographers need to have a minimum level of respect for the individual subject their safety, their dignity, and their autonomy. Using the principles of informed consent disclosure, voluntariness, comprehension, and competence is the most effective and well-developed way to ensure respect for subjects. At the same time, monitors and photographers need to have flexibility to respond appropriately in dramatically different circumstances. Their individual relationships to their subjects also need to be taken into account. This survey of the moral, legal, and practical applications of informed consent in journalism and in human rights has shown the complexity and challenges of establishing an informed-consent framework for human rights monitoring, documentation, photography, and videography. These concluding thoughts, based partially on learning from relevant aspects of the medical context, offer a combination of approaches that can constitute a foundation for a framework that will achieve reasonable levels of consistency, effectiveness, and flexibility.

194

Corrine Dufka also noted a difference in the context of journalism and human rights monitoring.[A]s a photojournalist there is an automatic distance between you and them. You dont talk to them and get to know them. There is just on-the-spot documentation of their situation. But as a researcher, you are with them, you talk to them, you cry with them. Taking photos feels like a violation of the contract between the researcher and the victim. Corrine Dufka, supra note 17.

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Appendix: Full text of interviews The full text of the interviews has been left unedited, except where necessary to preserve the confidentiality of the organization or respondent. Quotations appearing in the report have been edited for clarity. Organization: Amnesty International [AI] Respondent: David Whitbourn Interviewer: Julie Wilensky Date: Telephone interview, April 25, 2005 1. In what context and for what purposes does your organization make use of video, motion media, or still photography? Theres a separation between video and audio in one department and still photography in another. Ill talk to you more about video and audio stuff: What we do is, we have an audiovisual department that generates materials designed to complement the work that AI does. The way that the organization works is slightly complicated. We have an International Secretariat, which is based in London, but its a membership organization directed and funded by the members. A lot of countries have AI offices. So there is AI-USA, UK, France, Germany a large number of sections (there are 70 sections around the world, each of those is a country section). The International Secretariat has people employed in senior positions across the movement and is designed to have a broad view of what AI does. The audiovisual part of it (that I head up) is designed to work for the International Secretariat. It generates video and audio, and the national offices can use anything they want. We dont compel them to use it, but they can make use of it any way they want to use it for. We would distribute tapes and CDs, and the AI USA might, for example, take some of those tapes, then contact radio and TV stations in the US and say, we have this material, and its designed to illustrate issues we are concerned about, its available for TV or radio use free of charge for a certain period of time. Thats one use of it, to try and get broadcast coverage for things Amnestys working on. Another thing we do is put together campaign materials. With video, a ten minute video should have something that makes you understand what is going on, for example, in Sudan, and hopefully it makes you think, thats something Id like to do something about, and hopefully it gives you ideas for things AI thinks are good to do to effect change. It might urge you to write letters, or contact your representative, and do all sorts of different things that may help the particular situation. We also use video and audio for lobbying purposes. Were lucky that we have access to the UN, the US government, the British government, etc. Sometimes we make videos that illustrate the point were trying to make to that particular committee, representative, whoever that may be. We also use video for briefing purposes, either internally or externally, to brief groups as to what we believe are particular issues or things people should care about.

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2. Do you consider informed consent to be an important part of your work? If no, why not? If yes, in what ways has informed consent been most important to your work? Its enormously important. I used to work in television, and I worked in news and current affairs, and we had certain policies that governed the obtaining of consent and informed consent. One of the things that surprised me when I came to Amnesty was how much stricter these policies were. When you think about it, it makes sense. One of the issues I came up against when I first started here was, should we identify that person. By identify we mean, should we show their face, show their voice, or not use them at all? Or conceal things like where they are. There are various reasons for that. First and foremost, the security of the individual is a concern. Is there any threat for the information to be used in the way Ive just described to you. Fundamentally, the threat is if the video were shown on television, would that be a threat. But the question has to stop at the point of posing a threat to this persons security. When we go out and talk to people, we do have written consent forms that we take out and use where possible. We dont use them in all cases. In some cases they are not appropriate. For example, we have it in our languages, but sometimes we are talking to an indigenous person in a particular country who might not understand those languages or they might be intimidated by those languages. But it is our duty to explain to people as fully as possible, and we tend to do this on camera as well so we can have people look at it when we get back, because one of the issues is culturally, when you are explaining something, does somebody understand it in the way that youre explaining it, particularly in dealing with people who havent had as much exposure to media or video. Do they truly understand the impact this could have? I hope this doesnt sound patronizing to say, but when we get back, we review the tape to see if they have really understood what they are giving consent to. Sometimes we have situations where they give consent, but we want to be ultra-cautious, we want to make sure that they completely understand. If we release to a broadcaster, we have to assume it could end up everywhere. If we give something to NBC, we have to assume it could end up broadcast in Sudan or wherever. Sometimes we make decisions where we say, in the best interest of that person, we wont use that material. We balance that against the fact that sometimes you can safeguard the persons security by showing them. Thats why this process has to be drawn out. Someone will say, I want to be interviewed, I will no longer be hidden, I will be somebody people know about, and that gives me an additional degree of security. This is something we have to work out carefully, and figure out whether thats a reasonable thing for them to be saying. Figure out the politics of the situation. These are all tricky decisions, and we have to agonize over them. We have a desire to highlight an issue, but issues are made up of individuals, and security of individuals is our utmost concern. 3. Does your organization have a written policy related to obtaining informed consent from individuals seen/heard in the material before taking video/motion media/still photos or before using such materials publicly? If not written down, does your organization have informal or understood policies or guidelines related to informed consent?

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Yes. As I say, we have a written policy around it, but we also have to say that you cannot judge every single case by one policy. If anything, we err on the side of caution. Often we are fine with our written policy, but there are additional factors that we have to consider. I will see if I can track it down, if I can email it to you I will. 4. Whether written or informal: What is the policy or procedure? I will send it if I can. 5. When was this policy adopted? It might have a date, might not. 6. What was the internal process by which the policy was developed? It would have developed over a period of time. I hope AI was never nave enough to go out and highlight issues without considering impact on people. As video developed as a medium, as the media became more sophisticated, the policy must have changed with that. 7. Was there a particular incident or situation that prompted the creation of a policy? Probably AI was sensitized to this in the first place, because our original mandate was torelease prisoners of conscience. Considering people were in prison, any sort of exposure would have been thought about early on. There would have been a high likelihood that they could be sent back to prison or killed for their beliefs. There was a recognition at AI from the very start that beliefs can have a damaging effect on people. 8. What discussions were had/issues were raised in developing the policy? 9. What legal documents or principles, if any, were used to guide your thinking on this issue? 10. What ethical principles, if any, were used to guide your thinking on this issue? 11. Could you discuss the relative significance of ethical and legal concerns in developing your policy? In rough terms, legal issues were very much subordinate to the ethical, moral and security concerns. In certain countries, you have legal obligations, for example, to protect children, to derive consent. Now AI operates over any country we can operate over, and legally the rules change from country to country. Where there are legal standards, AI will adopt the most stringent of these standards, to make sure there is not anything being done that is illegal. Legal principles are largely based on ethics anyway. For example, in US or UK law, you dont identify people under 18 who are involved in crimes, since they deserve a higher degree of protection. The legal obligation is founded on a moral standpoint. Yes there are legal concerns, and we adhere to those, but that is not the end of the story. The more important ones in my view are the ethical concerns.

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12. Has the policy evolved over time? Our policy has evolved over time, in response to changing media, changing concerns of people, and the changing experience of AI. Perpetrators of human rights violations, and those violations themselves have unfortunately become more sophisticated, and our response has become more sophisticated as well. 13. How is the policy implemented and enforced? We have a standard approach to any interview that we do. That is documented, and Ill try and find those and email them to you. Thats kind of part checklist, part guidelines. Now on top of that we also have to enforce the responsibility of people who carry out the interviews to be completely aware, not only of the guidelines, but the sensitivities. The nature of our work is that we tend to be talking to people who have had bad things happen to them. On a human level, you have to be aware that asking someone to talk about something bad that happened to them is a bad thing to do. Sometimes its a good thing for them, its sometimes useful for them, and sometimes its not. We have to be aware of this and feel our way in talking to people, and ask them questions in a way that is sensitive and considerate of their feelings. If at any stage, at the start of that interview or during that interview, if we feel there is a negative effect on the person having the interview, we will stop. Also, if there are any issues there, we review the interviews that have been done when we get back. This is with a greater number of people, not just the person who did the interview. We look through them and say, how do we feel about it, and it is okay for it to be used and under what circumstances, or not at all. We involve other departments as necessary and appropriate in reviewing this. In London, we have a lot of researchers who work on each country in the world. It would be done in conjunction with these researchers; they have specialized knowledge of the cultural and political situation in each country as well. They have a greater knowledge of the local factors. We pull in other people according to the areas that have been covered. Sometimes we bring lawyers in as well. Or counselors (psychologists), who can evaluate particular experiences the person has been through. Wed like a third or second opinion on informed consent. What is the likely state of mind of the person who was being interviewed, could he or she have given informed consent? It means that sometimes we dont use things that are very powerful testimonies that we believe that they could effect change. For AI, the individual has to take precedence over the issue. There have been circumstances in which we havent used the footage because we believe it will have a negative effect on the person interviewed. 14. What problems have you encountered in implementing these policies? Sometimes we cant use particular footage (see above). One area that is probably the most problematic is with children, a massively complex area, and we try never to identify children, especially those who could be involved in criminal activities. For example, child soldiers, in those areas sometimes weve had

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interviews with huge amounts of material. There was one instance in which we had very good footage that illustrated how many children were being forced into conflict, it illustrated the scale, there was a parade ground of children who were drilling, and we had to go through individually and blur each face. It took us a long time to do that, but its only fair that we protect the identities of children. Part of the issue around all this is that they have not given informed consent to fighting in the first place, let alone using their image on TV afterwards. So we would not tend to use film of children in these situations. Weve had plenty of discussions around where there has been sexual violence against women who have had babies as a result of rape. There was a horrific crime committed against them. To illustrate as a visual point of view, we debate whether to show the baby born as a result of rape. Weve had plenty of discussions around should we use this, should we not use this, a) on grounds of taste and decency, b) on grounds of security could the people who raped her go back and threaten her or her child again. The questions come down to are we identifying, do we do blanket coverage (do we not use it all), or do we use it and disguise the identity. Two steps away is to say we dont identify the area, and that provides an additional degree of security, or we say that the footage may have been filmed six months or a year ago, so maybe things will have changed sufficiently, and the baby will look sufficiently different for the risks to be different, or the mother has moved, or the political situation has changed so they are no longer at risk as they were. All of those are issues that we go through, but ultimately it comes back to the risk of the person or people involved. If that risk is perceived to be there, then we wont use it. For child soldiers, we will do whatever it takes so that they cannot be identified. It may be that we film it from far away so you cant see them, or if we are offered footage from someone else, we blur the faces in there. Or if there is writing on a t-shirt, well blur that, or a distinctive item of clothing. 15. Do you have different policies for dealing with different populations, such as minors, minors without responsible adults, people with mental disabilities, people in prison or under coercive conditions, or indigenous groups? In dealing with people with mental disabilities, again, the judgments are, in all of this, we talk to people who are closest to these people. If someone is considered under law to not be responsible for their actions, such as a child, or person with a disability, do they have a guardian, or somebody who acts as a guardian for them, and can they give us insight into the kind of permission or informed consent that we can get from this person, that plays a part as well. In each of these situations, we dont set ourselves up to be arbiters on this, but we would go through the review process that I told you about earlier. Another example was footage filmed in Nepal recently. We went to an orphanage, and filmed there. We asked the head of the orphanage and the staff who worked with the kids to give us their assessment of the implications of showing any footage of the orphanage or any footage of the children. They said there was no problem, people had goodwill towards the orphanage. The conflict hasnt affected the orphanage itself, it had affected the kids in the orphanage whose parents were killed, but didnt present a security threat to the kids as a whole. But when we got back, we ended up disguising some of the identities of the children. Disguising the identities was dependant upon their back story, what they had

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been through before they got to the orphanage, and if, for example, there were some whose parents were killed as a result of some action they may or may not have been involved in. If there was a possibility that risk could be extended to the child, we disguised the childs identity. 16. Have you ever had a situation where you had the degree of consent legal required, but felt that ethically, informed consent required more, or vice versa? How did you handle this situation? Ethical concerns are more strict than legal. 17. How do you decide when informed consent has been given? We decide back at the International Secretariat, when we go through the review of the filming, by involving all necessary relevant or appropriate people who can add to the decision-making process. 18. Please feel free to include stories from personal or organization experience that might illustrate or illuminate this discussion. Ill tell you one more that is a very difficult one for us: the whole issue around secret filming. AI at the moment doesnt do any secret filming, because of the issue a) around informed consent and b) its a minefield, really. My personal opinion is that there are a number of issues that could be highlighted by covert filming that may justify them carrying out the filming. And I think that we still review that each time something comes up, we look at it and say, is this a case where it is to wholly overwhelming and justifiable that we will do it. But as yet, we havent hit that point, but there is something we will continue to consider and review. We do consider it, but we have not yet broken that official policy yet. Because we try and bring in as many people to consider this, it is inappropriate for me to tell you what I think would break this.

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Organization: Organization in eastern Europe working with people with mental disabilities, eastern Europe NGO Respondent: Requested identifying information to be kept confidential Interviewer: Julie Wilensky Date: Telephone interview, April 11, 2005 1. In what context and for what purposes does your organization make use of video, motion media, or still photography? Our NGO uses video in several ways: We document significant events in the lives of our clients, and we document different events of importance to the programs of the NGO. In addition, now that we have entered the partnership with Witness we will also use video as an advocacy tool in our efforts to protect the rights of persons with intellectual disabilities in Croatia. 2. Do you consider informed consent to be an important part of your work? If no, why not? If yes, in what ways has informed consent been most important to your work? Informed consent is a very important part of our work. The philosophy of Inclusion and our strong support of the idea that persons with intellectual disabilities should have equal rights as other citizens make it necessary for us to treat our clients with respect and ask for their consent in any activities which involve them. When we work with children we ask them and their parents or guardians for consent. If the person with intellectual disability looses her legal capacity after gaining consent from the person we contact the social worker at the centre for social work who has been designated as the guardian of the person. 3. Does your organization have a written policy related to obtaining informed consent from individuals seen/heard in the material before taking video/motion media/still photos or before using such materials publicly? If not written down, does your organization have informal or understood policies or guidelines related to informed consent? Our organization does not have a written policy for consent but we have informal policies and guidelines. 4. Whether written or informal: What is the policy or procedure? Our policy is that it is our duty to ask the people we work with for consent in any activity which may influence their lives. This also refers to gaining consent prior to making photos or video and again gaining consent prior to making them public. 5. When was this policy adopted?

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We adapted this policy form the beginning of our work with persons with intellectual disabilities. 6. What was the internal process by which the policy was developed? This policy was developed in accordance with the guiding ethical principles of the organization. All of our staff members agree to work in accordance with these guidelines when they sign their employment contract. 7. Was there a particular incident or situation that prompted the creation of a policy? This policy was created because the majority of our clients are persons with intellectual disabilities who spent on the average 20 years living in residential institutions. Basic human rights and freedoms, possibility of choice and decision making are basically nonexistent in institutional settings. Our goal was to empower people to participate more actively in all aspects of their lives. While they were living in institutions no one ever asked them for consent for anything so for us gaining consent not an option but an obligation. 8. What discussions were had/issues were raised in developing the policy? Issues were raised concerning written consent since according to the law in Croatia a person under guardianship can not decide for herself about giving consent. This decision is made by the guardian. Usually we ask the person for consent and than inform the guardian. 9. What legal documents or principles, if any, were used to guide your thinking on this issue? 10. What ethical principles, if any, were used to guide your thinking on this issue? Basically at the time we only used the guiding principles of the philosophy of Inclusion. In accordance with the philosophy of inclusion, every person has right to decide if she/he wishes to be visible in the media. Our duty is to explain what this means and what this will achieve, but it is up to the person to make the decision. 11. Could you discuss the relative significance of ethical and legal concerns in developing your policy? For us, the ethical concerns were always more important. This is mainly due to the fact that at present, the legislation in Croatia does not protect the rights of persons with intellectual disabilities. For example, if a person with intellectual disabilities looses her legal capacity, according to the law, it is sufficient to gain consent from the legal guardian and the person does not have to be asked. 12. Has the policy evolved over time?

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Yes as has our understanding of the principles of inclusion. 13. How is it implemented and enforced? In general, prior to taking photos or video, we talk to the person and inform the person of the purpose and goal for creating this kind of materials. Since our clients are persons with intellectual disabilities we usually ask them to invite relevant people in their lives for such meetings. Together we discuss the subject and explain why we want to make the photos or video and what they will be used for, and if the person agrees to participate he signs a consent [form]. Prior to publishing the materials we again meet with the person and once more ask her/his consent to publish. 14. What problems have you encountered in implementing these policies? The problems we encountered relate mostly to gaining consent from persons with severe or profound intellectual disabilities. Here it is crucial to include persons who know the person well in the meetings and to be able to make a decision even though the communication with the person is very difficult. 15. Do you have different policies for dealing with different populations, such as minors, minors without responsible adults, people with mental disabilities, people in prison or under coercive conditions, or indigenous groups? We only deal with the population of persons with intellectual disabilities. 16. Have you ever had a situation where you had the degree of consent legal required, but felt that ethically, informed consent required more, or vice versa? How did you handle this situation? We face this situation very often because we work with people with intellectual disabilities and as mentioned above, sometimes it is enough to receive consent from the legal guardian. For us this is not enough and we insist on gaining consent from the person as well eve though legally we are not obliged to do so. 17. How do you decide when informed consent has been given? When the person states that she/he understands the purpose and goal of making photos or video material and expresses her consent to participate. 18. Please feel free to include stories from personal or organization experience that might illustrate or illuminate this discussion.

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Organization: Human Rights Watch [HRW] (and former Reuters photojournalist) Respondent: Corrine Dufka Interviewer: Julie Wilensky Date: Telephone Interview, May 12, 2005 1. In what context and for what purposes does your organization make use of video, motion media, or still photography? We have a legal policy advisor HRW does have a policy on this issue, and what they did to come up with a policy on photos was to consult with three outside experts, then have a round table discussion with our staff. Our policy requires special care in the case of children, and is complicated by other people in particular positions of vulnerability. Veronica will probably go over issues of these. [note: We were unable to get in touch with Veronica] 2. Do you consider informed consent to be an important part of your work? If no, why not? If yes, in what ways has informed consent been most important to your work? Its very different as a photojournalist than it is working for HRW. As a photojournalist, youre trying to document situations. At HRW, were trying to document primarily for the use of testimonies. Sometimes taking pictures of people does damage to the trust that you are trying to develop with them. Often the information we get from people is from a guarantee of confidentiality, so a photo is a potential breach. So to illustrate my work, I rely on pictures that provide general illustration to the dynamics addressed in the report. For example, we [HRW] just did a report on West African mercenaries, and many of them had been child soldiers. We had some photos of them, but they had to go through special vetting with the organization. If it was a close-up photo of a child, then we wouldnt use it, but if it was a big photo with lots of kids sitting around, we could use that, as long as we didnt go into particulars of crimes they did. As a photojournalist, I would get right in there. People would come into a hospital, and I would just take photos. I would be much bolder about taking photos of victims of atrocities. Often these were in public settings people wounded by a mortar on side of the road, or hospital (and I got permission to work inside there). But often I would go in and take pictures of people without necessarily asking for consent. It was probably not the best to do, but we all did it. Often in a period of crisis, people dont notice whether their photo has been taken or not. Sometimes people want their photo to be taken, sometimes they dont. Generally speaking, both as a photojournalist, and a researcher, I would want to get at least a verbal permission of the person whose photo Im taking. But you can take peripheral photos for example, people in a war, going through checkpoints, where the photo is not referring to the particular individual, so if the police who have been habitually abusing them dont feel as if the person going through the checkpoint at that moment is the one who identified them as involved in atrocity. So we take informative pictures with open settings and lots of people.

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3. Does your organization have a written policy related to obtaining informed consent from individuals seen/heard in the material before taking video/motion media/still photos or before using such materials publicly? If not written down, does your organization have informal or understood policies or guidelines related to informed consent? We do have a form for consent, but we dont always use it. 4. 5. 6. 7. Whether written or informal: What is the policy or procedure? When was this policy adopted? What was the internal process by which the policy was developed? Was there a particular incident or situation that prompted the creation of a policy? 8. What discussions were had/issues were raised in developing the policy? 9. What legal documents or principles, if any, were used to guide your thinking on this issue? 10. What ethical principles, if any, were used to guide your thinking on this issue? 11. Could you discuss the relative significance of ethical and legal concerns in developing your policy? 12. Has the policy evolved over time? 13. How is it implemented and enforced? 14. What problems have you encountered in implementing these policies? 15. Do you have different policies for dealing with different populations, such as minors, minors without responsible adults, people with mental disabilities, people in prison or under coercive conditions, or indigenous groups? In siege of Sarajevo [referring to time as a photojournalist], people werent getting out, they had no contact with the Serbs, and they were being shelled from miles away. I was taking pictures of victims. Its a very compelling way of showing the human cost of this atrocity of war, taking pictures of graveyards or grieving. It doesnt put the person in danger, just shows the costs. In this type of situation, the victim has already suffered what it is they were going to suffer. With children, there are other considerations, such as child soldiers and child victims. Once I remember we put a photo of a child amputee on the cover of our [HRWs] report on Sierra Leone. You saw her head, but the others you couldnt see her faces. The aid agencies in Sierra Leone jumped on my back about this. They said I humiliated her. But our objective is to try and care about this, and move public policy on this issue. She was the victim of a gunshot wound. She had been on her mothers back, the mother had been shot at and killed, and this resulted in the loss of her arm. I thought they were being sanctimonious about it. I felt like saying, what about your own website? Like Save the Childrens website, it has children suffering in a different way. Its the same. Look at the potential of harm for the child. The child is not harmed by my picture. Someone said that there was another picture of a boy amputee, he saw the picture of himself, and came to a realization about that. But how can that create a crisis? Look at the intent of this picture: to bring about some kind of positive effect for the child in their

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community and their family. It doesnt have potential to harm them. They have already suffered the harm that will come to them. I always ask the parents if the parents are around, not the kid. But the parents arent always around. Caregivers, etc. arent around. So I always try to ask them, but how can I do that. There were kids I interviewed who were child combatants. How could I ask their parents? They havent been reunified with them. Im not going to not interview them just because I havent asked their parents. Its not always possible. Same thing with women. We have the policy [assuming refers to HRW] never to show the face of a woman rape victim. There are women who dont give a damn. They are willing to be photographed. But we still wont do it. This is a good example. Sometimes local papers download photos. Sometimes the woman is talking to a foreign woman and thinks that the information might stay in the foreign world, but then the boy she knows near her might still be able to see it. There are some women who would allow people to see it but most often the women we are talking to are very uneducated women, they cant read or write. But what we do then, see the cover of our report for sexual violence, but this woman was also tortured and burned on her back. I took it of her back. We had the counselors face, and the woman was reaching behind and touching her back. Thats how we might do something like a rape. 16. Have you ever had a situation where you had the degree of consent legal required, but felt that ethically, informed consent required more, or vice versa? How did you handle this situation? The issue of informed consent is sticky. How can you get consent from someone who doesnt understand the scope of the use, such as publishing it on the internet, etc.? Also, informed consent takes a long time to really explain to someone. It is a relative thing. I cant think of a particular example of that. But this issue of informed consent is quite relative. 17. How do you decide when informed consent has been given? Yeah, thats a judgment call, based on the level of education of the person, and the level of danger as well. In Sierra Leone, the rebel movement there is so backward. Arrogant. They wouldnt be reading our [HRWs] report, and they dont care about what people think of them. But the movements in El Salvador are different [referring to time as a photojournalist]. There was in issue there because some of the pictures that had been taken by journalists were later used by the CIA. If they allowed their photos to be taken, then maybe they didnt care, but they didnt necessarily understand that theyd be scrutinized. They can be picked up on the internet and then distributed to security forces. Its a judgment call. We are considering intelligence capacity and the brutality of particular regimes, and their willingness to target people. In Sierra Leone, the rebels didnt perpetrate politically motivated killings, per se, their violence were much more random. They engaged in violence against anyone deemed not to support them, but they didnt target people in particular, they didnt have that kind of expertise.

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18. Please feel free to include stories from personal or organization experience that might illustrate or illuminate this discussion. a. Has your thinking changed between HRW and as a journalist? Im more careful now that Im at HRW. As a journalist, your job is to get in there and get a picture that tells the story. First, I was taking photos in a crisis, so there was no time. People werent thinking about the pictures. People are in unceremonious pictures, with limbs hanging off. There was no time to talk about informed consent. Number two, they are taken within the context of crisis, trying to spotlight attention of horrific abuses in conflict situations. The importance of getting those pictures out overrides certain issues of the importance of getting informed consent. Also, they were taken in really public places. Marketplaces, a war zone, refugee camps, these kinds of things. If youre taking pictures of people in a hospital, there is more time, then you can ask them. When I took my job with HRW, after 10 years of being a photojournalist, I spent 4 months taking hundreds of testimonies with these people in Sierra Leone, and then they just wanted me to wire the pictures. And I realized I hadnt taken one picture. I just couldnt do it. This is one of the other differences [between photojournalism and human rights researching] the realm of human psychology. You are in very intimate situations with these people, they tell you about the most painful losses of their lives, and you cant bear to take their pictures. So I had to rush out and take pictures to illustrate that. So as a photojournalist there is an automatic distance between you and them. You dont talk to them and get to know them. There is just on-the-spot documentation of their situation. But as a researcher, you are with them, you talk to them, you cry with them. Taking photos feels like a violation of the contract between the researcher and the victim.

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Organization: Organization in Hungary working with people with mental disabilities, Hungarian NGO 1 Respondent: Legal Director Interviewer: Julie Wilensky Date: Telephone interview, May 12, 2005 1. In what context and for what purposes does your organization make use of video, motion media, or still photography? We have never done any video photography ourselves, but we have worked with organizations such as the BBC, whom weve gotten to come onto site visits with us. They do photography, and we lead them around. Weve never addressed video ourselves. But we do take lots of photographs, and Ive taken lots in institutions. The purpose is documentation as well as to inform, for use in presentations or for use in reports as well. But that really depends on the context. What we generally try to do is, if its about conditions, to take photographs showing the conditions, but not taking pictures of people, which is sometimes difficult, or sometimes seems silly, since you want to show the people in the conditions. Generally, if I am taking photos of people, I ask them. That really depends. Most people say yes, and people in institutions rarely receive visitors, so any attention is welcome. But the capacity to understand that these might be used in international reports is a different thing. These arent holiday photographs. 2. Do you consider informed consent to be an important part of your work? If no, why not? If yes, in what ways has informed consent been most important to your work? 3. Does your organization have a written policy related to obtaining informed consent from individuals seen/heard in the material before taking video/motion media/still photos or before using such materials publicly? If not written down, does your organization have informal or understood policies or guidelines related to informed consent? We dont have a written policy, we probably should, but we are a small organization, we know what the other coworkers are doing. We dont have any programs right now where we are working on documentation of conditions. Right now we are working on issues like guardianship you dont take photos of that, its a legal construct. We hired one person to take photographs alongside the researcher for our cage bed report. But Ive taken most of the photographs for institutions. Right now, were not monitoring, so there is no plan to train. Other colleagues of mine are going into these institutions to do interviews, but the purpose is not to do photos. When we worked with BBC on an issue in Slovenia, we didnt get involved in the filming, and they had their own editorial guidelines. They made a 3.5 minute piece for the BBC 10 oclock domestic news, which has the largest viewership in the UK, and the footage went out 3-4 times on BBC world, the 9 minute version.

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4. 5. 6. 7.

Whether written or informal: What is the policy or procedure? When was this policy adopted? What was the internal process by which the policy was developed? Was there a particular incident or situation that prompted the creation of a policy? 8. What discussions were had/issues were raised in developing the policy? 9. What legal documents or principles, if any, were used to guide your thinking on this issue? 10. What ethical principles, if any, were used to guide your thinking on this issue? 11. Could you discuss the relative significance of ethical and legal concerns in developing your policy? 12. Has the policy evolved over time? 13. How is it implemented and enforced? 14. What problems have you encountered in implementing these policies? 15. Do you have different policies for dealing with different populations, such as minors, minors without responsible adults, people with mental disabilities, people in prison or under coercive conditions, or indigenous groups? How do you gain consent from people who might have a mental disability? Some people are capable of giving consent and understand completely, others dont. That is a question. Also, there is the legal question. Some people in these institutions dont have any legal capacity within domestic law to make these decisions for themselves. Even if they consent, its meaningless. Almost all people in institutions in central and eastern Europe (and central Asia) are under guardianship. Under domestic law, they do not have the legal capacity or legal ability to refuse anything because they are non-people in the eyes of the law. That is the purely legalistic view. But generally people can give their consent, and we always respect that. If people say no, we dont do it. But you can say that people in a psychiatric facility dont have the power to consent to anything, because of the power dynamic. You have no control over any aspect of your life. If you are asked to do anything, you do it, if asked to be photographed, you do it. Thats not what consent is about. Some organizations block out peoples faces, which is fine to a certain extent, but some people would argue that that is really dehumanizing, and really worse than the possible violation of showing someones face, because it shows that people with disabilities are faceless people. Some people say if youre going to show someone, show them as a person, dont degrade them by blanking out features. Weve never blanked out the faces. Then again, in publications, weve tried to not show peoples identifying features. We have a publication about cage beds, and most of the photos are of the beds without people inside them, but one has a photo with a person but his face is turned away. Having said all of that, the other side of me says, in terms of action, there is nothing better than photography or even video at getting the message across. I havent seen the WITNESS video on Paraguay, but I have seen the Amnesty video on Bulgaria, I used it in training. People are in tears afterwards. Its immensely powerful.

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16. Have you ever had a situation where you had the degree of consent legal required, but felt that ethically, informed consent required more, or vice versa? How did you handle this situation? Legal issues are different in each country, it is not always obvious what the law is, there is no law on this specifically. But everyone in a long-stay social institution (90-95%) is under guardianship, and they cant do anything under law. They cant give consent. This doesnt really bother me, technically you should get the guardians permission, but you really wouldnt get sued by a person who agreed to be photographed and then the guardian disagreed. But weve never used a photograph like that for a publication. Most are just for internal use, training, conferences, not public like a report. Its a human/ethical reason why we ask them for consent. 17. How do you decide when informed consent has been given? Depends on the person. It really depends on the individual. Just because theyve been labeled disabled doesnt mean that they have intellectual disabilities. But if you have a camera, you hold it up and point to it, make a questioning-type face, people who dont want to get in it hold up their hands, run away, or people who do want to be in it assemble and smile. But we always ask the staff as well (the director, chief nurse, psychiatrist), they are usually fine with it. Sometimes they say no, invasion of privacy. I find that quite amusing, given how these institutions are violating peoples rights. But we respect that. 18. Please feel free to include stories from personal or organization experience that might illustrate or illuminate this discussion. I cant think of anything specific. Some people ask us to send a photograph to them or to their relatives, and that gets tricky. We do that. I cant think of any situations where weve thought wed had consent but its inappropriate.

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Organization: Off Center Media Respondent: Staff member Date: Received by email, March 29, 2005 1. In what context and for what purposes does your organization make use of video, motion media, or still photography? To promote political causes, such as universal health care, equal rights for women and workers, democratic process. 2. Do you consider informed consent to be an important part of your work? If no, why not? If yes, in what ways has informed consent been most important to your work? It is essential if it is to be aired on television, and to prevent suits. 3. Does your organization have a written policy related to obtaining informed consent from individuals seen/heard in the material before taking video/motion media/still photos or before using such materials publicly? If not written down, does your organization have informal or understood policies or guidelines related to informed consent? There is no written policy, but we get informed consent from all people interviewed one on one, or in a classroom. In public situations, we ask if anyone does not wish to be filmed, and we are careful to omit them. 4. Whether written or informal: What is the policy or procedure? All interviewees must provide a release form or oral consent on video. 5. When was this policy adopted? 1990 6. What was the internal process by which the policy was developed? We just did it. 7. Was there a particular incident or situation that prompted the creation of a policy? No. 8. What discussions were had/issues were raised in developing the policy?

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If a program is to be aired, we must have consent. 9. What legal documents or principles, if any, were used to guide your thinking on this issue? We used guidelines provided by other videomakers, and by Film Arts Foundation. 10. What ethical principles, if any, were used to guide your thinking on this issue? We wanted to be aired. Also, I served on the committee for protection of human subjects at UC Berkeley for 5 years and was well aware of the issues in the scientific community. 11. Could you discuss the relative significance of ethical and legal concerns in developing your policy? Informed consent grew out of the Nuremburg trials after WWII, given the experiments by Nazis on jews and prisoners. People must consent for their image or voice to be aired on TV or Radio, as it affects their reputation, possibly economic employment, and fame. 12. Has the policy evolved over time? No, it came directly from the Nuremburg trials. 13. How is it implemented and enforced? On a shoot, I usually assign a person to be in charge of getting releases signed. 14. What problems have you encountered in implementing these policies? Very few - Everyone signs. We do not film those who do not wish to be. 15. Do you have different policies for dealing with different populations, such as minors, minors without responsible adults, people with mental disabilities, people in prison or under coercive conditions, or indigenous groups? Yes, we follow the guidelines of no coercion. 16. Have you ever had a situation where you had the degree of consent legally required, but felt that ethically, informed consent required more, or vice versa? How did you handle this situation? Yes. I was in a classroom where students were discussing personal issues that should not be aired. I walked out with my camera.

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17. How do you decide when informed consent has been given? When the release is signed or oral consent given on video. 18. Please feel free to include stories from personal or Organizational experience that might illustrate or illuminate this discussion. Most people feel flattered to be interviewed and it is not a problem. Only in one case did an interviewee not release the copyright, so we could not use it. She is very protective of her image.

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Organization: International humanitarian aid organization Respondent: Spokesperson for organization Date: Received by email, June 4, 2005 1. In what context and for what purposes does your organization make use of video, motion media, or still photography? For publications (magazines, books, brochures, calendars etc.), reports (donor reporting etc.), the web site, as well as audiovisual news reels distributed to broadcasters; institutional training and promotional films. 2. Do you consider informed consent to be an important part of your work? If no, why not? If yes, in what ways has informed consent been most important to your work? Yes, informed consent is crucial to our work. Since it is our objective to protect not only the life but also the human dignity of persons affected by armed conflict we want to ensure that any photograph or footage of a person suffering the effects of conflict does not harm their own sense of their dignity. The way of making sure of this is to obtain the informed consent of the person concerned. When dealing with Prisoners of War, the Geneva Conventions forbid exposing them to public curiosity or humiliation (Third Geneva Convention on Prisoners of War, Article 13). This in the modern context is taken to mean that films and photographs should not be publicized with the intent of humiliating a prisoner or even putting him/her in danger in their country of origin (or their families). We would therefore refrain from using photos or films of prisoners that could possibly be humiliating or endanger them. 3. Does your organization have a written policy related to obtaining informed consent from individuals seen/heard in the material before taking video/motion media/still photos or before using such materials publicly? If not written down, does your organization have informal or understood policies or guidelines related to informed consent? Our organization does not have a written policy. We have an understood policy to request informed consent. For some special productions written authorizations have been collected. For example, when filming or taking photographs to draw portraits of persons and use their testimonials for feature films, our organization has requested written permission from the persons interviewed. Regarding the policy of not exposing prisoners to public curiosity, we consulted with our colleagues from the Law department to write an information note on the basis of the Geneva Conventions, widely available to communication staff (tool box). I believe the following publication contains some guidelines on safeguarding the personal data on child victims, please refer to: Guiding principles on unaccompanied and separated children

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This set of comprehensive guidelines outlines a framework and set of principles intended to ensure that the rights and needs of separated children are effectively addressed. Created through close inter-agency collaboration, the guidelines aim to promote and support preparedness, coordination and good practice based on lessons learnt. The document addresses all aspect of an emergency from preventing separations, to family tracing and reunification through to long-term solutions and encourages the pooling of complementary skills and expertise. ICRC, UNHCR, UNICEF, World Vision International, Save the Children UK & International Rescue Committee, Geneva, 2004, A5, photos, 71 pp., English / CHF 3.- / ref. 1101 4. Whether written or informal: What is the policy or procedure? The field communication officer requests informed consent from persons to be filmed, photographed in advance. He/she then guides reporters to the persons who have agreed to the purpose of the film/photographs and are aware of the distribution before the interview. 5. When was this policy adopted? It has always been part of our reflection and work 6. What was the internal process by which the policy was developed? The underlying general policy has always been part of our work. Special notes and guidelines (on persons deprived of their freedom or children) are developed together with legal experts and made available widely, in our organization and also to a wider public (e.g. the children guidelines are part of an inter-agency guidance booklet, see above). 7. Was there a particular incident or situation that prompted the creation of a policy? There was no incident that we know of. Geneva convention 3, 13 on the protection of POW from public curiosity stems of experiences made by army personnel during the Second World War. Hence States in 1949 decided to agree to protect future POWs against such public curiosity and humiliation. 8. What discussions were had/issues were raised in developing the policy? When we discuss AV projects, we underline how important it is to protect the personal data and dignity of persons affected by armed conflict protect persons deprived of their freedom from problems if and when they are released and to protect their families from any reprisals when a man or woman who has had problems is interviewed, we must ensure that the use of his/her image and name will not make him/her vulnerable and put him/her or her family in danger; authorities or armed groups could take sanctions against his/ her family. The risk

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is not only the broadcasting of the testimonial but the fact that there are reporters present and that s/he is seen giving an interview. When we film, we have a responsibility. Our mandate is to protect people. Filming behaviour has to stay in line with our values and must not cause problems on an operational or diplomatic/relational level or put people in danger. 9. What legal documents or principles, if any, were used to guide your thinking on this issue? Geneva Convention 3: Article 13. 10. What legal principles, if any, were used to guide your thinking on this issue? 11. What ethical principles, if any, were used to guide your thinking on this issue? Stay coherent with our mandate and approach to person protected by international humanitarian law. 12. Could you discuss the relative significance of ethical and legal concerns in developing your policy? The legal arguments are based on negative experiences made in the past (exposure to humiliation or to reprisals). The ethical arguments are based on the aim of being coherent in our approach across the board, in our action and in our communication. 13. Has the policy evolved over time? It is now more consolidated and widely know among our communications colleagues, in particular as the use of AV production has increased significantly. 14. How is it implemented and enforced? Permission to film or photograph in the field is very restricted and only done in the frame of a clear production project and with supervision. There is a "visa" system for AV production which involves operational decision makers at field and HQ level to ensure coherence in our practice and the safeguard of our approach. 15. What problems have you encountered in implementing these policies? When there was an agreement to film/photograph, no problems were encountered as it was done in respect of the rules. The challenge is to identify places and persons for whom there is no risk in public exposure and who are willing to participate in a production project. 16. Do you have different policies for dealing with different populations, such as minors, minors without responsible adults, people with mental disabilities, people in prison or under coercive conditions, or indigenous groups?

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See reference to children above, as well as to persons deprived of their freedom 17. Have you ever had a situation where you had the degree of consent legal required, but felt that ethically, informed consent required more, or vice versa? How did you handle this situation? In some rare cases, the decision was taken to classify material and submit it to the restrictions governing the access to confidential archives, meaning that access and public use is not permitted until 40 years after their taking. 18. How do you decide when informed consent has been given? This we decide on the basis of what the concerned person tells us. However, it has to be carefully explained what we are asking for since in many countries and cultures where we work the notion of informed consent or even in some cases the use of the visual image through photography or video is not familiar. Therefore the help of our local colleagues who are more familiar with local culture and ethics is essential. 19. Please feel free to include stories from personal or organization experience that might illustrate or illuminate this discussion.

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Organization name: International news agency Respondents name and title: Employee Interviewer: Julie Wilensky Date: Telephone Interview, May 10, 2005 1. In what context and for what purposes does your organization make use of video, motion media, or still photography? Obviously the main purpose is news. Now we do have a pictures archive business, which is a very, very, very small part of our business. Clients can approach us to buy pictures for other types of usage (advertising) where they would definitely need to get consent and get the rights in the picture cleared (such as image rights, copyright, other rights that might be associated). 2. Do you consider informed consent to be an important part of your work? If no, why not? If yes, in what ways has informed consent been most important to your work? It would really depend. For news organizations, we take footage as events happen. Its not always feasible or practical to get informed consent of the people in the photos. From time to time, we ask for contact details for the persons but that depends on circumstances, and the people in the field are the best judges of that. For example, we wouldnt stop someone grieving after the tsunami for his or her details, but if we take a great picture of a person at a comic book convention in Miami, we might take those details. Details might be used for a client [to whom we would sell the image]. It would depend. Usually our cameramen or journalists are not going to obtain consent from the subject they take photographs of. But these are being used for news reporting purposes. So its only for other purposes that you need consent. Its not only selling to third parties sometimes we would get clearance for them, but often we would tell them that they would have to get the rights cleared themselves before they can use the images. Another distinction to make is that [agency name] is a news agency, because we dont have a medium (or we didnt used to have before our website) that went directly to the general public. The way our content gets distributed is that we have a very large number of clients who distribute it. The images used to go through [agency name] terminals. Now there are other ways to get information, but we have a closed network of customers. They would get film footage or photographs. For pictures and footage, we would normally supply them to media clients (BBC, NBC, ABC, and newspapers). So again, for news reporting purposes, you make an assumption that the law allows it. In fact, the laws do allow this (with exception for copyright and other specific legal rights) in most jurisdictions. You do have to be careful about privacy because there are certain jurisdictions where it would be an infringement of a persons privacy to show certain images, even for news. For example, the Princess Caroline case. Given that she was a famous person, and what she did was of interest to the public, and an aspect of contemporaneous society, but that was the exception that German copyright law had, but the court said that even though shes a public figure, under certain circumstances, she is not always carrying out her public

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function and is entitled to her privacy. But [agency name] has never really been concerned with that because its not the kind of news reporting we do anyway. The other area that you raised was reporting things that are of particularly sensitive nature, victims, and so on. Again, now we actually do have certain clips and pictures you can see on Reuters.com and other websites that [agency name] hosts, but up until recently, it has really been that we supply the raw materials and other news organizations bring them to the public. So weve always considered that its not our job to edit the content, it depends on the customer media organization. BBC has its own standards for what it would show. Certainly the materials we send to our clients are much more graphic, more violent, than what they edit. We send the whole footage. With [agency name].com and [affiliated humanitarian organization], weve developed policies. Previously we never had an instance where we would send things directly to the public, but we obviously observe and comply with the law. That is where the difficulty comes in we operate all over the world and are subject to many jurisdictions. If there is a trial in the UK for example, such as one that happened recently, when certain Britons were charged with terrorism, and were incarcerated in the UK waiting for trials. In the US they indicted the same people for similar charges under federal law. The US media ran a lot of details about the charges, who the men were, but all of that information would be basically be at risk of being in contempt of court if published in the UK, and if their identities were published, then that would also be contempt. So we didnt publish the pictures in the UK, but if you publish on the internet, that could be seen by people all over the world. So we decide on a case by case basis. But here we did not publish the photos on the internet. Its a difficult issue were grappling with. [Affiliated humanitarian organization] is another really good example. Essentially, up until now, we have relied on the judgment of the news editors, who exercise a certain amount of judgment. When I said before we didnt edit, that is true to a large extent, but anything we do transmit, we have to feel that its of news value. We might take 20 min of footage and transmit 5 min to clients because the rest might not be of news value or have newsworthiness. I might direct you to the World Press Photos website. One of our photographers won that award for 2004, with a picture of a person mourning the death of her relatives in the tsunami disaster. The picture shows the woman basically prostrate on the ground, grieving, and in one corner is the arm of the dead relative. And there is an interview done with him that gives you quite a good insight on how photographers operate in the field. He says and I can quote, the question was, can you describe the circumstances up to the photo [quotes from web] it all happened in a few minutes. Shot whole scene, entire body but there wasnt much purpose showing that. I wasnt able to talk to them. It was a private moment of grief. I quote this to give you a sense of what its like to be on the scene, and respecting the people going through that. They do exercise a certain amount of judgment. The main thing is, does it serve a news purpose. We are not looking for gratuitous shock or things of that nature. With [affiliated humanitarian organization], again, [staff member] might be a better person to explain what they actually do. They are a nonprofit organization set up by [agency name] Foundation. Its mainly an exchange of information, and they are there to help people in disaster situations. One of the things that they do is to exchange pictures. Thats when I became aware of it and realized that people didnt know a lot about image

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rights. We did a couple of training sessions. The difficulty we encounter is that nonprofit organizations take pictures from us and use them in a way they just shouldnt. One example is where a nonprofit organization -- and I refer to a large outfit with operations all over the world, which is very well-known they took an image of a Sudanese refugee boy (taken by our camera man) and he was at a campsite, he was sitting at a campfire, trying to warm up, and this organization has used it in their campaign to raise funds for them. They had given this boy (we didnt know what he was called, it wasnt the kind of situation where wed ask him for his information), they had given him the name Jimmy. They had made up this narrative about Jimmy to target the heartstrings of potential donors. You can understand why they do it, but it was completely at odds with respecting the persons privacy. The reason why we became aware of it was a woman in London who recognized the person in the picture and contacted us, trying to find out how the photo was taken. Thats how we became aware of how these pictures were being used by others. Its a process of educating those organizations as well. I am working with [affiliated humanitarian organization]. Q: Do you have any materials form your image rights training? We have basic guidelines on trying to explain image rights it is something that was intended just for use within [agency name] only, Im not sure if I can pass it on, but it explains concepts of copyright, privacy, when you would actually need to seek consent. It tries to cover the basics, cant just limit it to UK law. In most jurisdictions apart from news reporting, you need to seek consent from the person. Some jurisdictions are much more strict. Example, Japan or Korea, if you are an ordinary person and your photo is in the newspaper for whatever reason without your permission, you can object. We try to cover the general principles. But in most jurisdictions if newsworthy and public you can use it. Q: What about interviewing someone for a long time on camera? Yes, we get express or implied consent. In a formal interview situation you would obviously seek consent. If its on the street, there is basically implied consent. 3. Does your organization have a written policy related to obtaining informed consent from individuals seen/heard in the material before taking video/motion media/still photos or before using such materials publicly? If not written down, does your organization have informal or understood policies or guidelines related to informed consent? 4. Whether written or informal: What is the policy or procedure? 5. When was this policy adopted? 6. What was the internal process by which the policy was developed? 7. Was there a particular incident or situation that prompted the creation of a policy? 8. What discussions were had/issues were raised in developing the policy? I think it goes back to the original question of what I was trying to explain: when its for news reporting, there is no specific policy that says that you have to get consent. I can illustrate the problem by giving you another example, an interview we had with two

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minors. We tend to be particularly sensitive where minors or victims are concerned. In the tsunami disaster, we had taken photos in hospitals (which is not something you normally do, except in war zones or conflict zones). There were two boys originally from Germany, they were holidaying in Phuket, and they had lost their parents. Our photographer had taken a few photos of them and had transmitted them. Those pictures along with others were transmitted to our client. It became a big story in Germany they are German nationals. Under German law, it is apparently illegal to record by means of a camera (not taking pictures but taking footage) in a hospital. So the guardians of the boys made a complaint against us saying that we would be subject to German criminal law in that case. But the pictures were taken in Thailand by a non-German national, they got transmitted outside Germany, were used by German clients, but they were not the ones in control. So it is difficult to apply one particular national law. Again, it wasnt gratuitous shots of the boys, if you remember when it happened, there was that Swedish youngster who couldnt speak, and it was hard to find his parents, and it was through exposure in the media that his father tracked him down and they were reunited. Under those circumstances, there is a very strong defense for the media to be publishing these pictures. 9. What legal documents or principles, if any, were used to guide your thinking on this issue? 10. What ethical principles, if any, were used to guide your thinking on this issue? 11. Could you discuss the relative significance of ethical and legal concerns in developing your policy? 12. Has the policy evolved over time? 13. How is it implemented and enforced? 14. What problems have you encountered in implementing these policies? 15. Do you have different policies for dealing with different populations, such as minors, minors without responsible adults, people with mental disabilities, people in prison or under coercive conditions, or indigenous groups? 16. Have you ever had a situation where you had the degree of consent legally required, but felt that ethically, informed consent required more, or vice versa? How did you handle this situation? 17. How do you decide when informed consent has been given? For a legal perspective, I think it would be useful to do a comparative analysis of the US and UK. Also in terms of content, France and Germany are much more protective of privacy rights than are the UK and US. In UK, privacy still doesnt exist as a separate cause of action (still used through confidentiality). For example, photos of Princess Caroline (which the court accepted that they shouldnt have published) are still publishable in the UK since particular principles dont apply here. The problem we have is that we cant apply one set of laws and be in the clear, we often find that when we go back to the basic principles, such as respecting the basic dignity of peoples, and what is actually fair under the circumstances, then we arrive at the right solution, or at least gives us an arguable case, even if we are technically non-compliant. 18. Please feel free to include stories from personal or Organizational experience that might illustrate or illuminate this discussion.

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Organization: A Hungarian organization working with people with mental disabilities, Hungarian NGO 2 Respondent: Director Interviewer: Julie Wilensky Date: Telephone interview, April 26, 2005 1. In what context and for what purposes does your organization make use of video, motion media, or still photography? We use video for training purposes. We have a program where we disseminate the methodology of supported employment in Hungary. We have our own films, so its not circulating out in the world were taking it, using it, and commenting on it. We use photography in our publications and on the website, and there are some occasions when the press comes or they photograph us or we give them photos. 2. Do you consider informed consent to be an important part of your work? If no, why not? If yes, in what ways has informed consent been most important to your work? Yes. Its a new recognition actually, that were supposed to ask our clients if there is photography of them, whether they approve the use of that photography, and whether that use is an extended use. For example, using a digital camera, would you have to get approval from the client to use it on your website or publication what is the range of application. In our case, it is more difficult to determine whether the client understands. This is something we recently realized is the kind of approval we should always look for, and it wasnt always so clear to us in the past. We need to do a more transparent job seeking approval from clients, but we do have difficulties getting a clear answer from the client. But sometimes clients (they all have intellectual disabilities) say yes to everything. A new problem we encountered was whether the parents approve. A recent case involves an award for integrated employment that we hand out with the Ministry of Labor every year to three employers who employ people with intellectual disabilities. A client was photographed at the event, and his parent saw it and was really upset. He was the kind of parent who didnt want to see his son called someone with an intellectual disability. We deal with adults, but the parents are still there. We have no idea, and this was like a cold shower to us, since any client in connection with us (because were specialized in working with people with intellectual disabilities) might have parents who might not accept. We just had this case. It took some effort to calm the individual down. We still dont have an answer as to whether we should ask the parent or relative for consent, when were dealing with adults. This was a few months ago, in 2004. 3. Does your organization have a written policy related to obtaining informed consent from individuals seen/heard in the material before taking video/motion media/still photos or before using such materials publicly? If not written down, does your organization have informal or understood policies or guidelines related to informed consent?

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We have informal guidelines at the moment, but we should have a policy. We have difficulties forming this policy. We are thinking about whom we should have consent from from the client obviously, but what happens if the parents intervene. Also the article about us was in a newspaper whose direction/orientation the parent didnt like. Were not political, but the parent found that a problem. If there is a policy, we have to make it clear that we at least need written consent from the client, that is more or less transparent, but how we deal with this more extended issue is unclear. Were not sure what the protocol is, if there is a protocol. 4. Whether written or informal: What is the policy or procedure? We just ask the person, and we also do this in writing, we make them sign that they dont have objections and we can use it for publication. In digital age, it is important to clarify that once you have a digital photo on your computer, you have multiple chances to use it, for example, on your website, or you can send it out, print it, use it for campaigns, posters, etc. We normally like to clarify the extent to which we want to use it. We have photos of people working, illustration for what we do. Its important that they consent to a wider use of that picture, which is normally a portrait of someone working. 5. When was this policy adopted? Ive only been here since March 2004, and there were some signatures before, but it wasnt transparent. Some people had used it before, some hadnt. Sometimes people forgot or didnt think about the extended use of that photograph. I would say there has been a form since 2000 or 2001, but the policy wasnt transparent, and wasnt always used. We have photos still in our possession without an approval or written approval, or, in a particular situation or year, a client would give her consent and then 2 months later change his or her mind. That is also the specific challenge of this target group. That makes it difficult, because you think you can use it, but then the parent or the client comes up and doesnt want to use it. This makes it hard when you think about formal procedures. He or she thinks that its fine, but by the time you publish it, the person is not fine. That is what its difficult for us to formalize it. 6. What was the internal process by which the policy was developed? Were more and more informed as there is more and more marketing going on in the foundation, more and more PR, which started not later than 2003, really this comes with the development of more and more publications, campaigns, brochures, website, etc. so since 2003-2004 when it really became an issue. As they became more educated as what this entails, you suddenly realize youre supposed to do something about the data protection of your own clients. The recognition came with the process, came up at staff meetings, and came up with certain cases like what I mentioned. 7. Was there a particular incident or situation that prompted the creation of a policy?

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The incident I told you about is something everybody remembers, but if you look at the website, its full of pictures, but we dont know if those people consented, since when those photos were taken, there was no website then, and the clients might not be around anymore. So we are thinking, what is a parent looks at the website, and then what? We started to make connections between factors and tools of PR and marketing that we have been using recently. Our next question is, could this be a problem, and the answer is yes. So how can we, from now on, prevent these problems from happening, or can we do these best practices to minimize the risks of offending people or getting into a scandal. Even if people consent, sometimes the parents dont want them to. 8. What discussions were had/issues were raised in developing the policy? 9. What legal documents or principles, if any, were used to guide your thinking on this issue? Not really, we kind of gave ourselves a task that we should ask someone, but we dont have the capacity to study these documents. This is a big issue in emerging countries. I should get a lawyer who knows the basics of this to advise us, but we dont have this on the scale that we want, we dont have the latest, most sophisticated policy. We want to introduce the basics. Before doing anything, we would look for consent. I think we should have legal advice, on what we should do to protect these kinds of rights for our clients. And we can learn from that and formulate some kind of policy that anyone whos new at the foundation or deals directly with clients should know. 10. What ethical principles, if any, were used to guide your thinking on this issue? Obviously, people with intellectual disabilities should have their rights protected. What rights there are to protect is something we should know more about ourselves. As an organization, youre not supposed to violate those rights, although of course we are using those photos in our best efforts to promote the case, promote our cause, and promote the rights of people with disabilities. So its kind of obvious that wed want to have the same rights, if possible, protected. I would certainly want that, I would not want to see my photograph on the web without knowing that it was there, or someone using a digital picture of me for all kinds of purposes. I see a little bit of a hole in our own knowledge of what are those basic rights, and how are they manifested in our daily practice, and when do we encounter situations where we should pay attention to these issues. In a time of less marketing and PR, this was less of an issue. It came up with the use of these tools and instruments and press and the need for extending our voice of being an NGO through the media. 11. Could you discuss the relative significance of ethical and legal concerns in developing your policy? Our concerns are more ethical, less legal. But with the parents, we probably could have a legal incident.

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12. Has the policy evolved over time? No, we havent changed the form, the recognition is new that we should formally do something about it. While we were doing the auditing in where we are (all procedures and policies) this is one thing mentioned that is missing formally. So its part of how you start using media and develop yourself as a formal organization. As a bigger, more formal organization, you need to have a few policies in place. So we have a couple written policies missing, and this is one. 13. How is it implemented and enforced? Well, as long as there is no written policy, its hard to make sure that its maintained. We have an understanding that this is a must before someones picture is taken. Its not every day that someones photo is taken at the workplace, it happens usually only when there is an event, or the press calls us and wants to talk about our work, asking us to go out into the field and take photographs. It doesnt happen every day. As long as there is no formal policy, there are no formal sanctions. 14. What problems have you encountered in implementing these policies? 15. Do you have different policies for dealing with different populations, such as minors, minors without responsible adults, people with mental disabilities, people in prison or under coercive conditions, or indigenous groups? 16. Have you ever had a situation where you had the degree of consent legal required, but felt that ethically, informed consent required more, or vice versa? How did you handle this situation? 17. How do you decide when informed consent has been given? Well, how could I? When the person says yes. When you write it down and he or she signs. But its hard to formulate how you know. Even when these people sometimes say yes, it doesnt mean they think so. My colleagues have an understanding of this. Normally this happens to a client who has been working with us for some time, so there is some intelligent judgment on my colleagues part as to whether yes means yes. This ONLY happens with a client with whom we have a relationship over time. This never happens with a recent arrival. We think about whether the client has been involved with us for a period of time, and we make some kind of a judgment about how she or he behaves and what she or he says. Even if the client signs it, theoretically we could sometimes say that consent hasnt been given, but I dont know that weve done that before. That is the specifics of our target group. Then again we have a limited number of cases that we can analyze here. 18. Please feel free to include stories from personal or organization experience that might illustrate or illuminate this discussion.

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Well we are aware, and we want to understand this better and do a better job, and deal with the difficulties of our specific target group.

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Organization: Soteria Foundation, Hungary Respondent: Zsolt Bugarszki, managing director Interviewer: Julie Wilensky Date: Telephone Interview, April 20, 2005 1. In what context and for what purposes does your organization make use of video, motion media, or still photography? We have some events in our clubhouses like parties, Christmas eve, etc. when we take photos. I cant remember any events when we used video. 2. Do you consider informed consent to be an important part of your work? If no, why not? If yes, in what ways has informed consent been most important to your work? We consider it as important part of our work. We do not provide any services to our users without their agreement. In the case of vocational rehabilitation service and case management in our clubhouse it is even a written agreement. 3. Does your organization have a written policy related to obtaining informed consent from individuals seen/heard in the material before taking video/motion media/still photos or before using such materials publicly? If not written down, does your organization have informal or understood policies or guidelines related to informed consent? We do not have a written document on it but we have a policy related to media. 4. Whether written or informal:What is the policy or procedure? Many times it happens, that TV channels, or radio reporters would like to make interviews with our users. We have a certain policy related to media. We do not deliver any users for interviews. At times reporters or editors call our staff ordering users for their reports. We refuse every orders but we do not say no to TV or Radio staff if they would like to visit our clubhouse. We think that our users are adult independent persons. The clubhouse is not a closed place its a public one everyone can enter. Even a TV staff. But we make sure that they have to have the permission from every single users who for being reported and filmed. This permission they have to ask from the users directly, not from us. And users have to see the entire report before publishing. When we take photos at our own parties and events we take photos only about those who allowed it. Usually the photos are taken by the users themselves. 5. When was this policy adopted? We decided about this policy like 5 years ago.

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6. What was the internal process by which the policy was developed? We discussed it on staff meetings and we also discussed it with the visitors of the Clubhouse. It has a regular forum we call Clubhouse-meeting where every users and professionals are involved. We made the decision on this meeting also. Every time when a new TV or radio staff would like to come we discuss it again on that forum. 7. Was there a particular incident or situation that prompted the creation of a policy? We had some bad experience with media before. They are pretty pushy and instead of reporting about something they use our users in their own conceptions. After some terrible reports we decided to create a policy. 8. What discussions were had/issues were raised in developing the policy? We discussed that media awareness is important for us, but we have to clarify its frameworks. It became clear that our users attitude is very different toward media. Some of them are eager to be in reports, others prefer to avoid publicity. Seeing this we decided linking reporters and journalists directly with our users and from that point it will be their personal agreement about filming or photographing. The only thing we are aware of is to make journalists keep their promises. Many times we had to threaten them with legal process because they didnt want to show the film before publishing saying: no time for it. 9. What legal documents or principles, if any, were used to guide your thinking on this issue? We have read the recommendation of the Hungarian Ombudsman of personal dates. 10. What ethical principles, if any, were used to guide your thinking on this issue? We took into consideration several ethical aspects. First of all we emphasized the privacy, but we found that the users need for awareness is also an important aspect. The other ethical aspect was the attitude we always have been emphasizing that we cant act like the parents of the users. We are not authorities here but rather partners of adult independent person who have their own rights to make decisions. So even if we have an opinion about some TV programs or some newspapers some users are eager to be in them so our taste or professional or personal opinion cant be an obstacle. 11. Could you discuss the relative significance of ethical and legal concerns in developing your policy?

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I dont understand this question. 12. Has the policy evolved over time? Yes. Thats because we have to discuss every single cases again before it happens. 13. How is it implemented and enforced? TV staff and journalists usually dont understand our methods (or they pretend not to understand) At times they come with cameras, spot-lights, reflectors, cables and the user who promised to take part in the interview change her/his mind. It happens that the reporter becomes angry starts to yell at me talking about her/his boss and etc. but we dont care. If the user say no, it means no. 14. What problems have you encountered in implementing these policies? At times it is not nice to have conflicts but its not a real problem. 15. Do you have different policies for dealing with different populations, such as minors, minors without responsible adults, people with mental disabilities, people in prison or under coercive conditions, or indigenous groups? We deal only with people suffering from mental health problems. So the policy is designed for them. 16. Have you ever had a situation where you had the degree of consent legal required, but felt that ethically, informed consent required more, or vice versa? How did you handle this situation? We havent had this situation before. 17. How do you decide when informed consent has been given? We take serious each other. If someone says NO it means NO, and YES means YES. 18. Please feel free to include stories from personal or organization experience that might illustrate or illuminate this discussion.

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Organization: Undercurrents Respondent: D Date: By email, June 20, 2005 1. In what context and for what purposes does your organization make use of video, motion media, or still photography? To high-light social injustice, environmental damage / ravages and positive community movement. 2. Do you consider informed consent to be an important part of your work? If no, why not? If yes, in what ways has informed consent been most important to your work? Very important in relation to those without power in our society, but not important in relation to those who hold it. Consent is very important when showing re-prestentations of those who challenge Authority in the shape of Govenrments, police, big corporations. But there is an unspoken consensus that those who go on big demonstrations would wear a mask or scarf if they needed to protect their identity. Smaller groups involved in direct action will almost always give consent before hand. 3. Does your organization have a written policy related to obtaining informed consent from individuals seen/heard in the material before taking video/motion media/still photos or before using such materials publicly? If not written down, does your organization have informal or understood policies or guidelines related to informed consent? No. Consent is informally requested on an ad hoc basis. 4. 5. 6. 7. Whether written or informal: What is the policy or procedure? When was this policy adopted? What was the internal process by which the policy was developed? Was there a particular incident or situation that prompted the creation of a policy? 8. What discussions were had/issues were raised in developing the policy? 9. What legal documents or principles, if any, were used to guide your thinking on this issue? 10. What ethical principles, if any, were used to guide your thinking on this issue? 11. Could you discuss the relative significance of ethical and legal concerns in developing your policy? 12. Has the policy evolved over time? 13. How is it implemented and enforced? 14. What problems have you encountered in implementing these policies?

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15. Do you have different policies for dealing with different populations, such as minors, minors without responsible adults, people with mental disabilities, people in prison or under coercive conditions, or indigenous groups? As above, consent is only obtained where the directors deem it necessary usually only if money is involved. For example if a piece of footage/ archive was been sold for us in commercial way, and it was possible to identify the individuals, then consent would be sought. 16. Have you ever had a situation where you had the degree of consent legally required, but felt that ethically, informed consent required more, or vice versa? How did you handle this situation? 17. How do you decide when informed consent has been given? 18. Please feel free to include stories from personal or Organizational experience that might illustrate or illuminate this discussion.

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Organization: Refugee organization Respondent: Photo Editor Date: By email, May 25, 2005 1. In what context and for what purposes does your organization make use of video, motion media, or still photography? I am the Photo Editor and so can speak only about use of still images. Our organization supplies photo material free of charge to external clients - NGOs, media, educational institutions, UN agencies, film makers, book publishers, etc in order to raise awareness of the plight of refugees. We never give pictures to anyone for commercial use. Internally, photos feature prominently on the homepage, where a new photo is posted almost daily to accompany news stories. In addition, there are several photo galleries posted under the multi media section of the website. Many photos are used in our quarterly publication, as well as in the biannual reports. Finally, we receive several photo requests for the various fundraising newsletters and awareness-building materials created by our offices around the world. 2. Do you consider informed consent to be an important part of your work? If no, why not? If yes, in what ways has informed consent been most important to your work? Informed consent begins with the photographer? While we strongly believe that our core mandate of protection of refugees should extend to the portrayal of refugees in its photographs and publications, the agency also recognizes that informed consent of beneficiaries who have their photos taken is quite difficult to control. First off, although a general briefing regarding photo visits is given to refugee community leaders and members upon arrival, a photographer cannot be expected to discuss with everyone he photographs the intricacies of how and where the images will be used. Along with being time consuming, this is highly counter-productive to someone who is trying to move about unnoticed to capture the essence of life in this community. Second, there is no way to be sure that every refugee, having had the intentions of the photographer and agency explained to them, will understand the implications of having their face on the internet or in the global media. For example, if a photographer in Angola explains to a returned Angolan refugee - who has spent his life in a remote refugee camp near the DRC /Angola border - that she would like to photograph his life and the life of the refugee camp to inform people around the of their plight, can we truly consider that informed consent? Finally, it would be very difficult for the photo editor of an agency of this size to be positively sure that all of the beneficiaries appearing the 25,000 some-odd photographs that come across her desk every year were properly informed of how their images will be used. That being said, our organization does give refugees a general briefing on photo/ media visits and explains the goals and intentions of the interviewers / photographers. We also accompany visitors into the field to act as a liaison between the two. On the other end of the process, the photo library carefully edits all images, carefully choosing them based

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on internal guidelines to avoid purchasing images thought to be exploitative or not true in their portrayal of the subject in the photo. 3. Does your organization have a written policy related to obtaining informed consent from individuals seen/heard in the material before taking video/motion media/still photos or before using such materials publicly? If not written down, does your organization have informal or understood policies or guidelines related to informed consent? While UNHCR does not currently have a formal written policy on the topic of photographing and/or publishing images of refugees, the agency does have internal, informal guidelines it abides by and is currently in the process of drafting these into formal guidelines. The final product - which will be distributed to everyone from staff and external photo clients to photographers traveling to refugee camps for outside media interests - will touch upon the following: I. The organization does not allow photographers to take images of any refugee or asylum seeker who expresses verbally or physically that they do not wish to be photographed. If someone who has already been photographed expresses that they do not want the photos to be published, we will not publish the images. II. The organization encourages the use of images that show the humanity of refugees and asylum seekers. We wish to show them as they are - regular people who have survived extraordinary circumstances. We strongly discourage the use of photos that negatively portray them. III. Any refugee or asylum seeker who has been the victim of violence, kidnapping, rape or sexual abuse should not be photographed so that their face is recognizable, and under no circumstances should their name be used. The same rules apply to refugees and asylum seekers who are living with HIV/AIDS. It might seem to some that, in cases where refugees have been victims of abuse or have a stigmatized disease, coming out in public might be healing or empowering. Unfortunately, and all too often, the reality for many refugees is that publicizing their experiences as victims or as someone with a heavily stigmatized disease could cause rejection by their communities. For this reason we take pains to protect their identities. Finally, refugees and asylum seekers who might be in danger of reprisals should never be photographed in a way that makes them identifiable nor should their names ever be used. Because a refugee by definition is someone who is fleeing persecution in their homeland due to their religion, ethnicity, or membership to a certain group, it is not unlikely that some of them -- or their relatives or friends still in their homeland -- are potential targets. IV. No photo may be used that portrays a refugee/asylum seekers/beneficiary in a dishonest way for example, one cannot publish a photo of a refugee and then assign them a fictitious story or even the story of another refugees true experiences to them. In short, all refugees must be portrayed honestly.

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Our decision to make a formal policy was inspired by an organization-wide query as to whether we would benefit from a list of rules for taking and using photographs. In the course of these discussions, and after seeing the photo guidelines of other agencies, we began our own internal discussions, and eventually decided to create its own list of guidelines. 4. Whether written or informal:What is the policy or procedure? Currently written, internal, informal. 5. When was this policy adopted? 6. What was the internal process by which the policy was developed? 7. Was there a particular incident or situation that prompted the creation of a policy? 8. What discussions were had/issues were raised in developing the policy? We asked ourselves how much can really be controlled. We also asked ourselves: where do you draw the line between simply showing what is going on and being exploitative? These are both difficult questions to answer and so in addition to the guidelines, we will continue to discuss new situations as they arise and amend the policy as needed. 9. What legal documents or principles, if any, were used to guide your thinking on this issue? 10. What ethical principles, if any, were used to guide your thinking on this issue? 11. Could you discuss the relative significance of ethical and legal concerns in developing your policy? We were simply following our core mandate of protecting refugees. Protecting refugees can take many obvious forms giving someone shelter and food, providing identity papers, creating a means for them to earn a living. It can also take the less obvious form of protecting someones identity by obscuring their face in a photo, or by not using a picture that you feel compromises someones dignity. 12. Has the policy evolved over time? As the media becomes more global, it is necessary to re-think the impact of publishing the story and life of someone whose life could be in danger. More generally, times change and the way we portray the work of the organization and the people we serve must evolve accordingly, and this will be reflected in the policies we have. 13. How is it implemented and enforced? There is no sure way to control how outside clients use photos or even inside clients for that matter. One must simply insist on seeing the products of the photo clients (internal

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and external), keep the discussion ongoing and deny photo access to anyone who does not comply with the policy. 14. What problems have you encountered in implementing these policies? Sometimes those whose responsibility it is to raise awareness of /support for beneficiaries in extremely anti-refugee environments will want to use shocking or disturbing pictures of refugees to jolt the public into feeling sympathy. Asylum is an extremely divisive issue in Europe (refugees are often confused with or simply accused of being economic migrants) and countries that have historically been very open to helping refugees are now putting into place policies that make it almost impossible to give asylum to them. Often, however, this shock tactic has the opposite effect. Because the average person in an industrial country is somewhat media savvy, it is not uncommon for them to see this ploy as an exploitation of the refugees by the agency that should be helping them. Because this shock tactic has been used by many agencies for many types of beneficiaries over the years, much of the public is simply immune or desensitized by it. The reality is that these types of images portray refugees and asylum seekers as being other and helpless and does not give full credence to their lives or plight. 15. Do you have different policies for dealing with different populations, such as minors, minors without responsible adults, people with mental disabilities, people in prison or under coercive conditions, or indigenous groups? 16. Have you ever had a situation where you had the degree of consent legal required, but felt that ethically, informed consent required more, or vice versa? How did you handle this situation? 17. How do you decide when informed consent has been given? 18. Please feel free to include stories from personal or organization experience that might illustrate or illuminate this discussion.

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