Caught on Film: What the Law Says About Filming the Police in Europe
By Roxane Cassehgari & Daniel Simons
As he was entering a suburban rail station in Paris last September, Guillaume Vadot heard intense cries of pain. He looked around and caught sight of a middle-aged black woman being forcefully handcuffed by officers. The university researcher pulled out his phone and began to film. But, according to Vadot, it was only a minute before officers snatched the device, tasered him, threatened to rape and kill him, and then insisted that he delete the video. Vadot later explained that he had been reminded of the case of Adama Traoré, a young black man who had died two months before under disputed circumstances, shortly after being taken into police custody.
In France, police face regular accusations of brutality and racial profiling, and tensions with minority communities have boiled over into protests and riots. Filming police interventions potentially creates a measure of accountability and an objective record of events.
Yet reports of harassment and prosecution of those who film the police are widespread across Europe. Just recently, Amal Bentounsi, a French anti-police brutality activist, was arrested for filming the police and sharing the video on social media. She is facing charges of “rebellion.” So what is the state of the law, and is there a right to film the police?
The European Court of Human Rights has not addressed the issue, beyond stating in general terms that the presence “watchdogs” during the policing of a demonstration is a guarantee that the authorities can be held to account. This has allowed national approaches to vary.
In some countries, moves are afoot to curtail documenting police actions. Spain in 2015 enacted the Citizen Security Law (better known as the gag law) that threatens a hefty fine for the unauthorized publication and dissemination of images of the police. In Belgium, a video blogger is appealing a €300 fine imposed by a court for filming and uploading two police officers’ response to an incident at a café, which in the court’s view violated their privacy. The Belgian interior minister is reportedly considering a formal legal ban. The lower house of the Dutch parliament recently adopted a motion calling for a change in the law that would result in the prohibition of the publication of recognizable images of police officers.
Despite the violent police response to Guillaume Vadot, French law, in fact, allows journalists and individuals to film or photograph the police in the public space and to publish the images—Ministry of Interior procedure allows for only limited exceptions. The Police in England and Wales follow similar rules, although here, too, practice on the streets is not always in tune with the law.
The right to film or photograph the police is a key safeguard of human rights and civil liberties in situations, particularly in situations that present a high risk of violations, such as stop-and-search operations, identity checks, or protests. Activists have argued that filming the police in action is a way to de-escalate tensions and potential violence, as the police officer is forced to behave in accordance with the law. Where abuses do occur, victims often find their version of events will not be believed unless video and photo evidence are available to support their claim against the police.
The fact that information creates accountability seems to be well-understood by police forces that have embraced the use of body-worn cameras by officers. Body cameras have been widely deployed in the United States since the killing of Michael Brown in Ferguson in 2014, and European forces are exploring their use. Since December 2016, French officers have to wear them during identity checks in urban zones considered “risky,” as part of a one-year experiment. Ostensibly, body cameras should increase police accountability—but in New York City, for example, the terms under which the resulting material is used are being contested by critics. The Center for Constitutional Rights (which receives funding from the Open Society Foundations) has argued that the New York police program turns cameras into “an additional tool for police to investigate and charge” people, rather the protection against unconstitutional police stops that it was intended to be.
If the police are able to film—placing them in control of the record of events—it is wrong that citizens are being denied the right to “film back.” A general right to film the police—subject only to limited and appropriate exceptions (such as the need to safeguard the rights of persons being detained and to avoid physical obstruction of police work)—would ultimately benefit their work, by helping to create an objective record of contested incidents and, in the long run, building public confidence in their work as a result of increased transparency and accountability. Filming the police also takes on particular importance in the context of public gatherings. The UN Special Rapporteur on the right to freedom of peaceful assembly emphasizes that it is everyone’s right to observe and monitor public assemblies. Recording the law enforcement operations is one way of doing this. Under international law, all states should protect this right, and prohibit the seizing or destruction of recording equipment.
Roxane Cassehgari was an Aryeh Neier Fellow with the Open Society Justice Initiative.
Until May 2017, Daniel Simons was a legal officer for freedom of information and expression at the Open Society Justice Initiative.