Web publishers need to pay more attention to getting formal permission to publish someone's likeness on the Internet. It may cut down a bit on spontaneity and it can be a hassle to manage the information but it's the right thing to do.
The Berkman Center for Internet and Society has just put out a legal guide especially geared to citizen journalists or participatory media. Although the guide is clear and well-written, you can tell it was put together by lawyers in academia and not by practicing journalists. No one would be able to follow all those rules and still meet a tight deadline.
That's too bad because there are a number of legal issues that you should be aware of when publishing on the Web or for a traditional media outlet. Still, the Berkman guide is a good starting place and you shouldn't be put off by its comprehensiveness.
One issue that I have focused a lot on in the past seven weeks in Malawi is getting written permission to publish a person's photograph—whether in print, broadcast or electronic format.
The principle is pretty simple to understand. It's one thing to take someone's photo for your own personal use. It's quite another to publish it.
You should have that person's permission to publish their likeness. How you prove that you received such an okay varies a lot from implied consent (the subject didn't try to block what was obviously a camera taking their photo) to spoken agreement to written consent.
There are also different standards based on the level of privacy one might expect in any given context. Then there's the issue of whether you are photographing a public personality or a private citizen.
In public places like the streets of Manhattan, there is not a reasonable expectation of privacy and so permission is implied. That's why you don't have to get even spoken agreement from all the folks featured in a crowd scene at a football game, for example, or at a demonstration.
In places like hospitals, where I have spent a lot of my career, there is an obvious expectation of privacy. And so, ideally, the highest standard—written permission for the publication of photographs—should apply.
But that's not always the practice. One thing I learned while on my Nieman fellowship is how often the implied consent rule is used—such as when a patient is transferred to an ambulance after a car accident. (The video or still camera was obvious and no one tried to stop the shot.)
For my Malawi project, however, I resolved to get written permission for the use of people's likenesses in most cases and only occasionally rely on verbal or even implied consent. I see no reason to use one standard in the U.S. and a different one in Malawi.
Plus, since the consent form includes the use that will be made of the photograph, it provides reassurance to the subjects that their image won't be used to illustrate an entirely different theme. One story I heard from more than one person was about unnamed journalists taking pictures under one guise—such as work in a hospital—and then using them to illustrate a story on HIV, accompanied by a caption that said declared that everyone in the photo was infected with the AIDS virus. Whether that's a true story or not I don't know, but it sounds plausible.
Another benefit of getting written consent is that you get people to write their own names, making sure to get the correct spelling. Plus you can write good caption information for the photos right on the consent form.
In retrospect, I should have realized that a lot of the patients would be illiterate. Ended up using X's and thumbprints in most of those cases. Fortunately, the idea of giving written consent for operations is becoming more widespread in Malawi and so people understood the concept—even in translation.
Anyway, you don't have to go crazy with these consent forms. In my opinion, long consent forms tend to obfuscate rather than to clarify what you're trying to do. Here's the central wording for my form:
"I hereby consent to the use of my photograph, video footage and name to illustrate any articles by Christine Gorman—whether in print or electronic format—concerning the subject of ________________________________________________."
That's followed by spaces for the printed name, signature, the date, address and contact information (telephone or email).
I use a separate consent for children, which requires a guardian's signature.
NB: Check out Andrew Quinn's experience with consent forms in Kenya.