A Data Protection Law Perspective on Street Photography
With the enactment of the Personal Data Protection Law No. 6698 ("KVKK") in 2016, concepts such as personal data, data processing, biometric data, and sensitive personal data have entered our lives. Under this law, the framework for personal data has been defined, personal data has been classified, and regulations have been made regarding the storage, processing, transfer, and other related matters of data within this framework.
Especially in recent years, with the development of technology and the widespread use of social media, data can now be quickly recorded and published. As is well known, when a photo is taken and uploaded to one of the social media platforms, it becomes accessible in a country thousands of kilometers away simultaneously, and legally, this constitutes a storage, processing, and transfer activity.
In light of these matters, in recent years, street photographers who widely practice their art through social media platforms and internet blogs have increasingly found themselves facing KVKK regulations.
At this point, both amateur and professional street photographers need to understand the legal status of the artistic work they produce, the framework it falls under within the scope of KVKK, how it is evaluated, their rights and obligations as street photographers, and the exceptions to these obligations. Therefore, this article has been written to shed light on these matters for the relevant parties, providing an evaluation of street photography from the perspective of data protection law.
I. Definition of Street Photography
Although there have been many different definitions of street photography, it can fundamentally be defined as wandering through the streets of a city to capture life, coincidences, surprises, encounters, events, and people. In this sense, street photography can be described as an art that brings together ordinary people, everyday lives, moments and memories lost throughout the day, with light and perspective, and conveys them to the viewer through the viewfinder.
In recent years, with social media occupying a significant place in our lives and social media content almost taking on the characteristics of an exhibition, we are increasingly encountering the concept and products of street photography. In street photography, not only the people on the streets but also the conditions of the time, the good and bad aspects of society, and real-life glimpses from people's lives are also included.
Therefore, it is expected that the photographer adheres to traditions, socially accepted ethical rules, and, of course, legal regulations. Indeed, while the photographer's intention may be simply to capture an image, the situation may not be the same for the person being photographed. This brings to the forefront the legal dimension of the photographs resulting from street photography, as well as the personal data of the individuals being photographed and the protection of these data under the relevant legislation. In our study, we have included evaluations regarding the data of individuals considered the subjects of street photography and the protection of these data.
II. Street Photography Under the Scope of the Personal Data Protection Law
A. Consideration of the Photograph as Personal Data Article 3/1-d of the Personal Data Protection Law No. 6698 (KVKK) defines personal data as "any information relating to an identified or identifiable natural person." Accordingly, a natural person's image, voice, identity number, name, phone number, and resume are considered personal data. The reason we specifically mention "image" is to emphasize that the photographs taken within the scope of street photography, which is the subject of this study, are deemed personal data. Of course, the images of stray animals commonly encountered in street photography do not contain information related to a natural person and, therefore, are not considered personal data. The focus of this study is solely on the images of natural persons featured as subjects in street photography.
In street photography, it is inaccurate to assume that randomly taking a person's photo is acceptable based on the perception that the person will not be identifiable. Indeed, a visual representation of a person's face alone can make that person identifiable, and when combined with information such as the date, time, and location of the photograph, it becomes possible to determine the identity of the person featured in the photo.
It should be noted that capturing a photograph and thereby obtaining visual data of the individual is considered a data processing activity under KVKK. As a rule, personal data cannot be processed without the explicit consent of the data subject. To process data without explicit consent, the existence of legal processing conditions specified in KVKK—namely, data processing exceptions—must be present.
As the subject of this study, since the subject of the photograph is a natural person and the photograph of a natural person constitutes personal data, as a rule, a person’s photograph cannot be taken or processed in any other way without their explicit consent. Pursuant to the relevant legislation on explicit consent, it is only possible to take photographs of individuals and perform technical processing on these photographs if explicit consent is obtained based on informing the individual about the data processing activity related to the photo shoot and if such consent is given freely..
The unlawful acquisition, processing, or copying of a person’s credit card number or Turkish ID number without the individual’s explicit consent and in the absence of data processing exceptions constitutes the unlawful acquisition of personal data. A similar situation applies to images resulting from street photography. An activity in which the individuals featured in the photograph do not provide explicit consent will be considered unlawful. Naturally, before obtaining explicit consent from individuals, they must be adequately informed on the matter, and consent must not be presented as a coercive or mandatory element.
Following the definition of personal data in KVKK, Article 6, titled “Conditions for Processing Special Categories of Personal Data,” was established to ensure that these data, which must be more strictly defined and limited compared to other personal data to prevent discrimination and victimization, cannot be expanded through interpretation. Accordingly, "Data concerning an individual’s race, ethnic origin, political opinion, philosophical belief, religion, sect, or other beliefs, appearance and dress, membership in associations, foundations, or trade unions, health, sexual life, criminal convictions, and security measures, as well as biometric and genetic data, are considered special categories of personal data." As with other personal data, the processing of special categories of personal data generally requires explicit consent.
One crucial point to consider regarding Article 6 of KVKK is that biometric data are also classified as special categories of personal data. According to the definition provided by the Personal Data Protection Authority (“Authority”), biometric data are “personal data resulting from specific technical processing relating to the physical, physiological, or behavioral characteristics of a natural person, which uniquely identify or confirm the identity of that person, such as facial images or dactyloscopic data.”
In light of the above explanations, it can be stated that a photograph is primarily considered personal data, while data obtained through the technical processing of a photograph constitutes biometric data, meaning special categories of personal data. If a person’s face is analyzed using face recognition software through technical processing, this constitutes the processing of special categories of personal data. Similarly, scholarly opinions suggest that, in the future, individuals may be able to secretly take photos of random passersby on the street and use facial images to search for and access their social media profiles.
While the development of various technologies, such as facial recognition methods, facilitates business practices in numerous sectors ranging from security to healthcare, it is essential to carefully balance and respect the personal rights of individuals derived from the Constitution and the protection of their personal data, as these individuals are the subjects of such technologies.
B. The Legal Status of the Photographer in Terms of Personal Data Protection
After defining personal data as any information relating to an identified or identifiable natural person, we mentioned that the acquisition, copying, or collection of personal data is also regulated as the processing of personal data.
A photograph of a natural person is considered personal data as it can identify the individual either on its own or when combined with other information. The act of taking a photograph in street photography corresponds to the processing of personal data. If the photographs undergo technical processing, as mentioned above, special categories of personal data are involved.
The key point to focus on here is the photographer's position under the KVKK. The KVKK mentions two distinct concepts related to the data processing activity. According to this, the "data controller" is the natural or legal person who determines the purposes and means of processing personal data and is responsible for the establishment and management of the data recording system. The "data processor" is the natural or legal person who processes personal data on behalf of the data controller based on the authority granted by them.
In street photography, it must be reassessed whether the photographer, who engages in data processing activities through the act of taking photographs, will be considered a data processor or a data controller under the KVKK. For instance, a photographer who takes, records, retouches, and edits photos for a purpose they have determined will be classified as a data controller. In this case, the photographer has the authority to determine all purposes, means, and the data recording system for the photos. On the other hand, a photographer who works on behalf of another data controller, performing street photography based on the authorization and purposes set by someone else, is only executing the act of taking photos. In such a case, even if the photographer makes small adjustments or retouches to the photos, they will be considered a data processor because they are not responsible for the data recording system or the purposes of data processing.
Whether the photographer is a data controller or a data processor is important for determining the responsibilities outlined in the KVKK.
It should be noted that in the data processing process that occurs through photography, certain circumstances may trigger the exceptions outlined in the KVKK. According to this, the provisions vary depending on the purpose and location of the photo shoot. This issue will be discussed in the next section.
C. The Impact of Data Protection Law and Exceptions on Street Photography a. The legal nature of the photograph according to its purpose of capture
i. Photographs taken for personal purposes According to Article 28/1-a of the KVKK, "the processing of personal data by individuals themselves or by family members living in the same household, within the scope of activities related to themselves, provided that the data is not given to third parties and the obligations regarding data security are adhered to," will not be subject to the provisions of the KVKK. Therefore, it can be said that KVKK does not apply to photographs taken on private occasions within the family. However, it is important to be cautious in order to protect the personal rights of family members. Indeed, sharing these photos on social networks or disclosing them in public spaces falls outside the scope of this exception.
ii. Photographs for artistic and scientific purposes When examining the legal status of photographs taken for artistic or scientific purposes, according to Article 28/1-c of the KVKK, "Personal data processed for artistic, historical, literary, or scientific purposes, or within the scope of freedom of expression, provided that they do not violate national defense, national security, public safety, public order, economic security, the privacy of personal life, or personality rights, or constitute a crime, will not be subject to the provisions of the KVKK."
As explained above, street photography emerges as a type of photography where individuals pursue artistic purposes.
Although photographs taken within the scope of street photography for artistic purposes fall under the exception, the provision states "provided that it does not violate the privacy of personal life or personal rights, nor constitute a crime," emphasizing that personal rights should not be violated during the act of photographing. Therefore, it is important to highlight the need to balance the interests between individuals' personal rights and artistic purposes.
In street photography, which is a situation that requires a decision based on the specific case, even if the photographer's purpose is artistic or scientific, the person's image being the subject of a photograph and thus the processing of their data falls under personal rights, which are closely linked to the individual. Therefore, explicit consent must be obtained from the person whose photo is being taken. For this reason, it is not possible to claim that street photography entirely falls under the scope of exceptions.
Of course, the process of obtaining explicit consent from the street photographer must always take place before the photograph is taken. In this way, the person whose photo is being taken should be informed in advance about the subject to which they are giving explicit consent. Obtaining consent after the photograph has been taken would violate the regulations of the KVKK. If the person to be photographed is a child, explicit consent will need to be provided by their legal representatives.
The giving of explicit consent does not mean that the consent cannot be withdrawn. Explicit consent, as one of the rights closely tied to the individual, can always be revoked by the data subject without any conditions. It cannot be said that the consent given for artistic or scientific purposes is valid if the photograph is later used for commercial purposes.
iii. Photographs taken within the scope of freedom of expression The exception for photographs taken within the scope of freedom of expression is regulated in Article 28/1-c of the KVKK, as mentioned in section ii: “Personal data will not be subject to the provisions of the KVKK if processed for artistic, historical, literary, or scientific purposes, or within the scope of freedom of expression, provided that it does not violate national defense, national security, public safety, public order, economic security, privacy, or personality rights, nor constitute a crime.”
Regarding freedom of expression, it will be necessary to list the possibilities based on the differences in how individuals express themselves. As explained above, due to the existence of a person's personality rights over the photograph, it is required for the photographer to obtain explicit consent for photographs where the individual is personally captured, with a focus on their face.
One of the possibilities is the photographing of a demonstration held in a public space by a street photographer. The taking of these photographs may lead to the identification of individuals' personal data, such as their political views, sexual preferences, or ethnic identities, based on the content of the demonstration. This may necessitate greater protection of individuals' personality rights, rather than applying an exception. Therefore, it is not possible for the photographer to be absolutely subject to the exception in this case.
Another possibility is that a street photographer may take photographs to capture a crime occurring in a public space. In this case, while the photographer may be allowed to take photographs for the sake of public interest, it should not be overlooked that if there is a security concern from the police or other law enforcement agencies, the act of photographing may be prevented.
iv. Photographs taken within the scope of legitimate interest
Article 5/2 of the KVKK states that "Personal data may be processed without the need for explicit consent, provided that it is necessary for the legitimate interests of the data controller, without harming the fundamental rights and freedoms of the data subject."
When considering the scenario to be examined for street photographers, if a photographer enters into an agreement to take photos of guests at an event in a public space, it should be considered that there is a legitimate interest. In such a case, there would be no need to obtain explicit consent from individuals. However, informing participants that the event is being recorded and that images may be taken in a public environment could be a precautionary measure. Ultimately, the balance of interests between the individuals photographed and the photograph itself should be carefully considered in the context of the specific case.
v. Photographs taken for commercial purposes It is possible for a street photographer to conduct the photography process as a commercial activity (for example, for the promotion of a brand, product, or service); however, in such a commercial context, explicit consent should be requested from the person whose photo is taken, emphasizing that the purpose of the photography is commercial in nature.
b. The legal nature of photographs depending on the place of capture i. Street photography in public spaces As previously mentioned, the evaluation of street photography, specifically for commercially oriented photographs, varies depending on the concrete case. The fact that the photo is taken in a public space is important for the applicability of the exception under Article 28/1-c of the KVKK. For example, when taking a nature photograph, the inclusion of a few people in the background may be considered acceptable under the exception of Article 28/1-c.
On the other hand, individuals' personality rights continue to apply in public spaces as well. For example, while a hospital is open to the public, it is not considered a public space. Therefore, if a photo is to be taken in a hospital and individuals' faces will be visible, the consent of the individuals being photographed must be obtained, in addition to the approval of the hospital management. Thus, the fact that the area where the photo is taken is public does not mean that individuals can be photographed without their consent if they are involved in the shoot.
ii. Street style photography in public spaces Especially in public spaces, there are photos of individuals whose fashion sense is admired. The United States has adopted two different views on whether consent should be obtained from the individuals being photographed in street style photography. One group argues that obtaining consent from the subject of the photo would disrupt the naturalness of the shot, while the other group advocates for the necessity of obtaining permission, based on the idea that no image existing on the internet ever truly disappears.
Looking at Turkish legislation, even if the subject of the shoot is solely about fashion and style, permission must always be obtained for shoots where the person's face is visible or prominently featured, and the shoot is conducted for commercial purposes.
Conclusion Taking all these factors into consideration, it can be concluded that the situation of street photography in terms of data protection law is closely related to the specific case, and that it is not possible to categorically say whether street photography is fully compliant with the law or not under data protection law. In this context, when assessing legal compliance, it would be legally more sound to conduct an evaluation not of street photography as a whole, but on a case-by-case basis, considering the aspects we have mentioned above.
With the enactment of the Personal Data Protection Law No. 6698 ("KVKK") in 2016, concepts such as personal data, data processing, biometric data, and sensitive personal data have entered our lives. Under this law, the framework for personal data has been defined, personal data has been classified, and regulations have been made regarding the storage, processing, transfer, and other related matters of data within this framework.
Especially in recent years, with the development of technology and the widespread use of social media, data can now be quickly recorded and published. As is well known, when a photo is taken and uploaded to one of the social media platforms, it becomes accessible in a country thousands of kilometers away simultaneously, and legally, this constitutes a storage, processing, and transfer activity.
In light of these matters, in recent years, street photographers who widely practice their art through social media platforms and internet blogs have increasingly found themselves facing KVKK regulations.
At this point, both amateur and professional street photographers need to understand the legal status of the artistic work they produce, the framework it falls under within the scope of KVKK, how it is evaluated, their rights and obligations as street photographers, and the exceptions to these obligations. Therefore, this article has been written to shed light on these matters for the relevant parties, providing an evaluation of street photography from the perspective of data protection law.
I. Definition of Street Photography
Although there have been many different definitions of street photography, it can fundamentally be defined as wandering through the streets of a city to capture life, coincidences, surprises, encounters, events, and people. In this sense, street photography can be described as an art that brings together ordinary people, everyday lives, moments and memories lost throughout the day, with light and perspective, and conveys them to the viewer through the viewfinder.
In recent years, with social media occupying a significant place in our lives and social media content almost taking on the characteristics of an exhibition, we are increasingly encountering the concept and products of street photography. In street photography, not only the people on the streets but also the conditions of the time, the good and bad aspects of society, and real-life glimpses from people's lives are also included.
Therefore, it is expected that the photographer adheres to traditions, socially accepted ethical rules, and, of course, legal regulations. Indeed, while the photographer's intention may be simply to capture an image, the situation may not be the same for the person being photographed. This brings to the forefront the legal dimension of the photographs resulting from street photography, as well as the personal data of the individuals being photographed and the protection of these data under the relevant legislation. In our study, we have included evaluations regarding the data of individuals considered the subjects of street photography and the protection of these data.
II. Street Photography Under the Scope of the Personal Data Protection Law
A. Consideration of the Photograph as Personal Data Article 3/1-d of the Personal Data Protection Law No. 6698 (KVKK) defines personal data as "any information relating to an identified or identifiable natural person." Accordingly, a natural person's image, voice, identity number, name, phone number, and resume are considered personal data. The reason we specifically mention "image" is to emphasize that the photographs taken within the scope of street photography, which is the subject of this study, are deemed personal data. Of course, the images of stray animals commonly encountered in street photography do not contain information related to a natural person and, therefore, are not considered personal data. The focus of this study is solely on the images of natural persons featured as subjects in street photography.
In street photography, it is inaccurate to assume that randomly taking a person's photo is acceptable based on the perception that the person will not be identifiable. Indeed, a visual representation of a person's face alone can make that person identifiable, and when combined with information such as the date, time, and location of the photograph, it becomes possible to determine the identity of the person featured in the photo.
It should be noted that capturing a photograph and thereby obtaining visual data of the individual is considered a data processing activity under KVKK. As a rule, personal data cannot be processed without the explicit consent of the data subject. To process data without explicit consent, the existence of legal processing conditions specified in KVKK—namely, data processing exceptions—must be present.
As the subject of this study, since the subject of the photograph is a natural person and the photograph of a natural person constitutes personal data, as a rule, a person’s photograph cannot be taken or processed in any other way without their explicit consent. Pursuant to the relevant legislation on explicit consent, it is only possible to take photographs of individuals and perform technical processing on these photographs if explicit consent is obtained based on informing the individual about the data processing activity related to the photo shoot and if such consent is given freely..
The unlawful acquisition, processing, or copying of a person’s credit card number or Turkish ID number without the individual’s explicit consent and in the absence of data processing exceptions constitutes the unlawful acquisition of personal data. A similar situation applies to images resulting from street photography. An activity in which the individuals featured in the photograph do not provide explicit consent will be considered unlawful. Naturally, before obtaining explicit consent from individuals, they must be adequately informed on the matter, and consent must not be presented as a coercive or mandatory element.
Following the definition of personal data in KVKK, Article 6, titled “Conditions for Processing Special Categories of Personal Data,” was established to ensure that these data, which must be more strictly defined and limited compared to other personal data to prevent discrimination and victimization, cannot be expanded through interpretation. Accordingly, "Data concerning an individual’s race, ethnic origin, political opinion, philosophical belief, religion, sect, or other beliefs, appearance and dress, membership in associations, foundations, or trade unions, health, sexual life, criminal convictions, and security measures, as well as biometric and genetic data, are considered special categories of personal data." As with other personal data, the processing of special categories of personal data generally requires explicit consent.
One crucial point to consider regarding Article 6 of KVKK is that biometric data are also classified as special categories of personal data. According to the definition provided by the Personal Data Protection Authority (“Authority”), biometric data are “personal data resulting from specific technical processing relating to the physical, physiological, or behavioral characteristics of a natural person, which uniquely identify or confirm the identity of that person, such as facial images or dactyloscopic data.”
In light of the above explanations, it can be stated that a photograph is primarily considered personal data, while data obtained through the technical processing of a photograph constitutes biometric data, meaning special categories of personal data. If a person’s face is analyzed using face recognition software through technical processing, this constitutes the processing of special categories of personal data. Similarly, scholarly opinions suggest that, in the future, individuals may be able to secretly take photos of random passersby on the street and use facial images to search for and access their social media profiles.
While the development of various technologies, such as facial recognition methods, facilitates business practices in numerous sectors ranging from security to healthcare, it is essential to carefully balance and respect the personal rights of individuals derived from the Constitution and the protection of their personal data, as these individuals are the subjects of such technologies.
B. The Legal Status of the Photographer in Terms of Personal Data Protection
After defining personal data as any information relating to an identified or identifiable natural person, we mentioned that the acquisition, copying, or collection of personal data is also regulated as the processing of personal data.
A photograph of a natural person is considered personal data as it can identify the individual either on its own or when combined with other information. The act of taking a photograph in street photography corresponds to the processing of personal data. If the photographs undergo technical processing, as mentioned above, special categories of personal data are involved.
The key point to focus on here is the photographer's position under the KVKK. The KVKK mentions two distinct concepts related to the data processing activity. According to this, the "data controller" is the natural or legal person who determines the purposes and means of processing personal data and is responsible for the establishment and management of the data recording system. The "data processor" is the natural or legal person who processes personal data on behalf of the data controller based on the authority granted by them.
In street photography, it must be reassessed whether the photographer, who engages in data processing activities through the act of taking photographs, will be considered a data processor or a data controller under the KVKK. For instance, a photographer who takes, records, retouches, and edits photos for a purpose they have determined will be classified as a data controller. In this case, the photographer has the authority to determine all purposes, means, and the data recording system for the photos. On the other hand, a photographer who works on behalf of another data controller, performing street photography based on the authorization and purposes set by someone else, is only executing the act of taking photos. In such a case, even if the photographer makes small adjustments or retouches to the photos, they will be considered a data processor because they are not responsible for the data recording system or the purposes of data processing.
Whether the photographer is a data controller or a data processor is important for determining the responsibilities outlined in the KVKK.
It should be noted that in the data processing process that occurs through photography, certain circumstances may trigger the exceptions outlined in the KVKK. According to this, the provisions vary depending on the purpose and location of the photo shoot. This issue will be discussed in the next section.
C. The Impact of Data Protection Law and Exceptions on Street Photography a. The legal nature of the photograph according to its purpose of capture
i. Photographs taken for personal purposes According to Article 28/1-a of the KVKK, "the processing of personal data by individuals themselves or by family members living in the same household, within the scope of activities related to themselves, provided that the data is not given to third parties and the obligations regarding data security are adhered to," will not be subject to the provisions of the KVKK. Therefore, it can be said that KVKK does not apply to photographs taken on private occasions within the family. However, it is important to be cautious in order to protect the personal rights of family members. Indeed, sharing these photos on social networks or disclosing them in public spaces falls outside the scope of this exception.
ii. Photographs for artistic and scientific purposes When examining the legal status of photographs taken for artistic or scientific purposes, according to Article 28/1-c of the KVKK, "Personal data processed for artistic, historical, literary, or scientific purposes, or within the scope of freedom of expression, provided that they do not violate national defense, national security, public safety, public order, economic security, the privacy of personal life, or personality rights, or constitute a crime, will not be subject to the provisions of the KVKK."
As explained above, street photography emerges as a type of photography where individuals pursue artistic purposes.
Although photographs taken within the scope of street photography for artistic purposes fall under the exception, the provision states "provided that it does not violate the privacy of personal life or personal rights, nor constitute a crime," emphasizing that personal rights should not be violated during the act of photographing. Therefore, it is important to highlight the need to balance the interests between individuals' personal rights and artistic purposes.
In street photography, which is a situation that requires a decision based on the specific case, even if the photographer's purpose is artistic or scientific, the person's image being the subject of a photograph and thus the processing of their data falls under personal rights, which are closely linked to the individual. Therefore, explicit consent must be obtained from the person whose photo is being taken. For this reason, it is not possible to claim that street photography entirely falls under the scope of exceptions.
Of course, the process of obtaining explicit consent from the street photographer must always take place before the photograph is taken. In this way, the person whose photo is being taken should be informed in advance about the subject to which they are giving explicit consent. Obtaining consent after the photograph has been taken would violate the regulations of the KVKK. If the person to be photographed is a child, explicit consent will need to be provided by their legal representatives.
The giving of explicit consent does not mean that the consent cannot be withdrawn. Explicit consent, as one of the rights closely tied to the individual, can always be revoked by the data subject without any conditions. It cannot be said that the consent given for artistic or scientific purposes is valid if the photograph is later used for commercial purposes.
iii. Photographs taken within the scope of freedom of expression The exception for photographs taken within the scope of freedom of expression is regulated in Article 28/1-c of the KVKK, as mentioned in section ii: “Personal data will not be subject to the provisions of the KVKK if processed for artistic, historical, literary, or scientific purposes, or within the scope of freedom of expression, provided that it does not violate national defense, national security, public safety, public order, economic security, privacy, or personality rights, nor constitute a crime.”
Regarding freedom of expression, it will be necessary to list the possibilities based on the differences in how individuals express themselves. As explained above, due to the existence of a person's personality rights over the photograph, it is required for the photographer to obtain explicit consent for photographs where the individual is personally captured, with a focus on their face.
One of the possibilities is the photographing of a demonstration held in a public space by a street photographer. The taking of these photographs may lead to the identification of individuals' personal data, such as their political views, sexual preferences, or ethnic identities, based on the content of the demonstration. This may necessitate greater protection of individuals' personality rights, rather than applying an exception. Therefore, it is not possible for the photographer to be absolutely subject to the exception in this case.
Another possibility is that a street photographer may take photographs to capture a crime occurring in a public space. In this case, while the photographer may be allowed to take photographs for the sake of public interest, it should not be overlooked that if there is a security concern from the police or other law enforcement agencies, the act of photographing may be prevented.
iv. Photographs taken within the scope of legitimate interest
Article 5/2 of the KVKK states that "Personal data may be processed without the need for explicit consent, provided that it is necessary for the legitimate interests of the data controller, without harming the fundamental rights and freedoms of the data subject."
When considering the scenario to be examined for street photographers, if a photographer enters into an agreement to take photos of guests at an event in a public space, it should be considered that there is a legitimate interest. In such a case, there would be no need to obtain explicit consent from individuals. However, informing participants that the event is being recorded and that images may be taken in a public environment could be a precautionary measure. Ultimately, the balance of interests between the individuals photographed and the photograph itself should be carefully considered in the context of the specific case.
v. Photographs taken for commercial purposes It is possible for a street photographer to conduct the photography process as a commercial activity (for example, for the promotion of a brand, product, or service); however, in such a commercial context, explicit consent should be requested from the person whose photo is taken, emphasizing that the purpose of the photography is commercial in nature.
b. The legal nature of photographs depending on the place of capture i. Street photography in public spaces As previously mentioned, the evaluation of street photography, specifically for commercially oriented photographs, varies depending on the concrete case. The fact that the photo is taken in a public space is important for the applicability of the exception under Article 28/1-c of the KVKK. For example, when taking a nature photograph, the inclusion of a few people in the background may be considered acceptable under the exception of Article 28/1-c.
On the other hand, individuals' personality rights continue to apply in public spaces as well. For example, while a hospital is open to the public, it is not considered a public space. Therefore, if a photo is to be taken in a hospital and individuals' faces will be visible, the consent of the individuals being photographed must be obtained, in addition to the approval of the hospital management. Thus, the fact that the area where the photo is taken is public does not mean that individuals can be photographed without their consent if they are involved in the shoot.
ii. Street style photography in public spaces Especially in public spaces, there are photos of individuals whose fashion sense is admired. The United States has adopted two different views on whether consent should be obtained from the individuals being photographed in street style photography. One group argues that obtaining consent from the subject of the photo would disrupt the naturalness of the shot, while the other group advocates for the necessity of obtaining permission, based on the idea that no image existing on the internet ever truly disappears.
Looking at Turkish legislation, even if the subject of the shoot is solely about fashion and style, permission must always be obtained for shoots where the person's face is visible or prominently featured, and the shoot is conducted for commercial purposes.
Conclusion Taking all these factors into consideration, it can be concluded that the situation of street photography in terms of data protection law is closely related to the specific case, and that it is not possible to categorically say whether street photography is fully compliant with the law or not under data protection law. In this context, when assessing legal compliance, it would be legally more sound to conduct an evaluation not of street photography as a whole, but on a case-by-case basis, considering the aspects we have mentioned above.
Turkish
