How would Robert Capa and Joe Pulitzer have reacted to the law that came into force on March 15 in their country of birth, Hungary? Let us guess that they would have been stunned. A provision in the new Hungarian civil code forbids taking pictures without the permission of everyone in the photograph.
The law covers "anyone in the frame," wrote American photographer David Schloss on the Digital Photography Review website, "which means that in theory, photographers will have to seek permission from anyone in the foreground or background whether they are the subject or they are incidental to the shot, as long as they are identifiable in the photo."
Phoblographer news editor Felix Esser noted, "Previously, Hungarian law required permission from everyone in a photograph before publishing it, but now it requires photographers to get permission from everyone that could be identifiable in the resulting picture before taking it."
Can we imagine Capa asking permission of everyone on the scene before tripping the shutter? If he had done so, we would never have seen most of his masterpieces, which belong not only to the history of photography but also to the memory of humanity's most decisive moments.
Although it has been justified by the government as a mere codification of current court practice, the new regulation has baffled Hungarian photojournalists. "Having to ask for permission beforehand is quite unrealistic in any reportage situation," said Marton Magocsi, senior photo editor at the news website Origo, according to the Guardian. "We are afraid that it could start a landslide of lawsuits."
One commentator on the Guardian website asked ironically: "Will you have to ask yourself if you want to take a 'selfie'?"
In past few years, Hungary has earned itself a bad reputation in the field of press freedom. This new law is bound to be seen as another example of the ruling conservative Fidesz party's intent to tame the media. It has been adopted without "genuine consultation," according to Magocsi. Lawyer Eszther Bognar told the Guardian, "Nobody has any ideas how exactly this law will be implemented." The law goes beyond the current obligation for the press to pixelate police officers' faces in photographs unless they have explicitly given their consent. "The new Hungarian law means bad apples in the country's police force will find it easier to avoid (...) scrutiny," wrote London-based tech writer Glyn Moody.
Yet Hungary is not the only EU country that severely regulates the taking of pictures in public places. In 2000, France adopted the restrictive Guigou law (named after Elisabeth Guigou, justice minister at the time) on "droit à l'image" (the right to image) that also tipped the balance against photojournalists' rights and in favor of privacy. In 2002 the newsmagazine L'Express was found in breach of the law and fined for having published pictures of two women on their knees praying in public during a 1997 event in Paris with the late Pope John Paul II. The court considered the picture demeaning since it implied that these two women were "satisfied with the secondary role that religions confer to women."
This new Hungarian law confirms a fact that was highlighted during the controversies around the Hungarian media law adopted at the end of 2010: all EU member states should review their own media legislation so that would-be censors in other lands cannot find an alibi for their anti-press policies. In 2012, French Culture and Communications Minister Aurélie Filippetti agreed that the law on "droit à l'image" should be amended since it unduly restricted the rights of photojournalists to do their job and "transmit to future generations their look on today's world." Although the Guigou law has not been formally scrapped, it has been gradually modified and eroded by court judgments and decrees that have limited the right of individuals to stop the publication of photographs unless they can prove they have suffered a real moral prejudice.
The Hungarian government might have learnt useful lessons from the vicissitudes of the French law. As Capa might have told them, "You are slightly out of focus."