Taking photographs from a public right of way may raise legal issues. In this article, Simon Odell CMLI examines some of the considerations members should bear in mind.
Members should be aware that taking photographs from a public right of way (for example as part of a LVIA or LVA) may raise legal issues. We asked our solicitors to see if it was possible to clarify some of these…
In legal terms, public footpaths and public bridleways are forms of public highway. The public has the right to use a public highway for any reasonable purpose provided they do not create an obstruction or nuisance. Unreasonable use of a public highway amounts to trespass, and wilful obstruction of a highway (without lawful authority or excuse) is a criminal offence. Whether the use of a public highway is reasonable depends on the particular circumstances.
In addition, some areas of the countryside are actually designated as “access land” under the Countryside and Rights of Way Act 2000. Any commercial activity on such land requires the permission of the land owner.
Other restrictions may apply to some public places such as Royal Parks.
As well as the question of lawful use of the path or land from which photographs are taken, issues of privacy may arise. Article 8 of the European Convention on Human Rights (which is recognised in domestic law) protects the right to respect for private and family life, including access to private information and access to or intrusion into one’s personal space. In some cases photographs including individuals and/or their homes may, depending on the circumstances, infringe the Article 8 rights of individuals, particularly if such photographs are published.
It can be seen from the above that the legal position when taking photographs from public rights of way is not straightforward.
The Landscape Institute therefore recommends that practitioners are particularly diligent about the considerate use of rights of way and courtesies when entering onto land.
Members should discuss any concerns with their clients, and they may wish to suggest alternative options. Solutions might involve not taking photography from the public right of way, asking the client to agree permission with the adjacent landowners, or others.
The Landscape Institute is not able to provide definitive advice to its members regarding this matter, which depends on the particular circumstances of each case. The information in this blog is provided as general information only and may not be relevant or apply in your particular situation.
If in doubt, members should seek their own legal advice.
(This blog was edited shortly after publication to correct text and reconcile it with the guidance published in https://landscapewpstorage01.blob.core.windows.net/www-landscapeinstitute-org/2020/04/12275-LI-Technical-Guidance-02-20-v2.pdf)