AV News 178 - November 2009
Private Property
Owners of property do not normally have the right to prevent someone from
taking photographs of their property from a public place such as a public
highway, (though see below for issues of national security). There is also
no general restriction on taking photographs while on private property,
provided the photographer has permission to be on the property. However,
the owner has the right to impose whatever conditions he wishes on entry
to his property, including a restriction on photography. Photography is
prohibited by the conditions of entry to many museums and stately homes,
for example and by most concert venues.
A person who enters onto private property without permission commits a
trespass, as does anyone who “interferes” with the property. Interference
could be something as minor as climbing on the landowner’s wall to take a
photograph over the wall or resting a camera on a fence. If a person has
permission to enter property on the condition that he does not take
photographs, but he ignores the condition, he becomes a trespasser as
soon as he takes a photo. Even where property is open to entry by the
public in general, as in the case of most business premises, the owner or
occupier has the right to demand that a photographer cease taking
photographs and the right to demand that he leave the premises.
In England and Wales, any unauthorised entry on to privately owned
land, or buildings or structures attached to land, is a trespass, regardless of
whether any damage is done to the property. This is not a criminal offence
in most circumstances, but the landowner can sue for damages for trespass
even if no physical damage has been caused.
There is a perception that, in Scotland, there is no law of trespass. This
is incorrect, but damages can only be claimed if actual damage has been
caused. In all three jurisdictions, a landowner can seek an injunction
(interdict in Scotland) to prevent an individual from continuing to trespass.
In theory, a court could also make an order preventing the publication of
photographs taken while trespassing, but the UK courts have been
reluctant to do this.
Property owners have limited rights of self-help against a trespasser. An
occupier can use reasonable force to prevent a trespasser entering his
property and also to remove a trespasser who refuses to leave. A violent
attack would be unreasonable, as would threatening someone with a gun
or other weapon. The same rules apply to security guards, bouncers and
the like; they are acting as agents of the owner or occupier of property and
they too can only use reasonable force. Neither the property owner nor his
employees have any right to confiscate or damage a photographer's
camera or other equipment, or to demand film or the deletion of memory
cards. In practical terms, though, a pho ѽ