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Photography and Restaurants

Not so recently, my acquaintance who keeps a food blog was questioned on why she was taking photos in a restaurant. The link is to a post where she vehemently defends her rights to take photos in a restaurant, to which I disagree. If Century Hospitality Group were my client, I would argue taking photos in a restaurant is akin to trespass, and invasion of reasonable expectation of privacy.  Unfortunately, Alberta does not have a Privacy Act (like Manitoba, Ontario and Saskatchewan). FOIPP only applies to public entities, and all case law regarding reasonable expectation of privacy are in from criminal investigations and surveillance.

She was asked why she was taking photos, and when she said it was her blog - the restaurant manager seemed confused.

The manager stated that they must get permission before they take photos. I agree with this.  Mack may argue that policy was not posted anywhere. However, a notice does not need to be posted: 1) a restauranteur can reasonably expect that patrons would not be taking pictures of their food. 2) the manager gave you oral notice which is sufficient. Notice does not always need to be in writing. While a restaurant is considered a "public space", a restaurant is still private property.  Once a person with authority over the premises,  tells you not to do something - one is obliged to follow the instructions.

Mack may argue that Hundred "has something to hide", if they don't want social media.  However, Hundred has a right to control their image.

Law students reading this, any more additional arguments?

EDIT: Here's another response.

EDIT 2: Basically, it boils down to Hundred is private property. They can tell you what you can or cannot do inside their restaurant.  If they don't want social media, it's their prerogative.

Comments

( 25 comments — Leave a comment )
bobbyb2
Dec. 14th, 2008 05:19 am (UTC)
I completely disagree. People take photos in restaurants ALL THE TIME. Maybe not always just of the food, but who hasn't taken photos of their friends while out eating?

Yes, I think the restaurant can ask you to stop & you should respect that, but I don't think that they have an expectation of privacy persay.

I've been told I'm not allowed to take photos in IKEA before. They claim it's for security reasons. Buuulllshit. My guess is they don't want you to steal their designs. But then, they put out a catalog.. soo.....??
starbucksweetie
Dec. 14th, 2008 05:25 am (UTC)
Yeah, but taking photos of your friends in a restaurant is not the same as taking pictures of the food in the restaurant.

Security reasons is not only the designs of Ikea. I'm thinking of loss prevention for theft. What if you took photos of where their security cameras, their security controls, the blind spots of their stores...
bobbyb2
Dec. 14th, 2008 05:27 am (UTC)
... With the camera pointed directly at a sofa? Whatever you can take a photo of with a camera, you can also see with your eyes. If someone wanted to scope out the joint, they could come in with a pad of paper & take notes, or talk into a recorder, etc.

What's wrong with taking photos of food? I don't do it myself & I think it's weird, but seriously, what's wrong with it?
starbucksweetie
Dec. 14th, 2008 01:43 pm (UTC)
It's easier for employees to enforce a bright line rule - no photographs, rather than to determine whether you are *really* violating security. There's other non-legal arguments against taking pictures of the food such as it disrupts the dining experience and when you're taking pictures of food, you're busy documenting the experience instead of "living" it. The latter is mine.
mastermaq
Dec. 14th, 2008 07:07 am (UTC)
I'm not a lawyer, so I'm not going to argue against the laws and/or legal precedent that might exist and be relevant here. Instead, I'd just like to point out a few of the things I have mentioned elsewhere:

- If dozens of other local restaurants don't have a problem with photography, why does Hundred? What makes them special?
- The manager didn't tell me to stop taking photos, nor did he ask me to leave. He simply asked what I was doing and failed to give me an explanation for why he thought I shouldn't be taking photos. Was it his personal opinion, or official restaurant policy?
- If Hundred were my client (from a marketing perspective) I'd ask why they haven't responded at all, anywhere. I think they should at least acknowledge the discussion that continues to take place without them.

Finally, the argument most people have given in defense of Hundred is similar to the one you made here in legal terms. This notion of privacy, which is hardly black and white. How can a restaurant have a "reasonable expectation of privacy"? That seems entirely contradictory to me - a restaurant's business depends on having the public visit. I wasn't taking photos of the kitchen or offices, locations in which the public is generally not allowed.

Are there any relevant legal cases you could point me to? I'd love to read the decisions.
starbucksweetie
Dec. 14th, 2008 01:38 pm (UTC)
Relevant Canadian photography law is here at http://ambientlight.ca/laws.php in layman's terms. Unfortunately, Alberta does not have the equivalent of Privacy Act nor is their relevant civil case law. Anything regarding "misappropration of personality" or "right to publicity" (torts that usually involve photographs) only apply to individuals.

- Just because other restaurants allow photography doesn't inform what Hundred ought to do as a business.

I'm glad you clarified your second point that he didn't tell you to stop taking photos, and just asked why.

I've decided to concede my point on reasonable expectation of privacy - but I can't wait to see relevant case law about this *someday*
jenxjuicy
Dec. 14th, 2008 03:49 pm (UTC)
youre suucch a law student.
starbucksweetie
Dec. 14th, 2008 04:09 pm (UTC)
You know it :)
catpuccino
Dec. 14th, 2008 03:58 pm (UTC)
Not being very familiar with privacy law (in fact I think Australia doesn't have any really... hence I think we have problems with categorising/prosecuting something like stalking) I can't really refute your arguments legally, but I don't really agree. I hate it when places ask you not to take photos, unless there's a better reason than "competition from other places". I.e. In an art gallery taking flash photography because it ruins the art = fair enough. I mean honestly, if the competition wanted to steal your ideas they could just as easily come in and just EAT your food and go back with ideas of what it's like.

I think it's more a problem if they take photos of the food and then use those photos to pass off as their own food then you've got a problem... But otherwise, I don't think taking photos of the food is any worse/different from taking photos of you and your friends. I mean, in both cases it's to enhance your personal enjoyment of the meal right? Some people treasure the memories of who was there, and some people treasure the memories of what they ate.

I also think the statement that "a restauranteur can reasonably expect that patrons would not be taking pictures of their food" is definitely not applicable in the current climate of avid food blogging. And as a sidenote restaurants that serve great food should be proud of it and glad to show it off to the world at large. Think about the extra customers you get from a good food blog review!

And then, what is the difference between a food blogger or just a person who likes to take photos of food coming in and taking photos and a reviewer for a newspaper coming in and taking photos of the food? They're not always going to tell/ask the proprietor because a lot of reviewers like to stay quiet about their identity right?

Finally on the asking for permission for photo taking - I have on occasion asked first and usually the response is "yeah sure" and then a puzzled look of "why the hell not?" so I think most restaurants really don't care. And certainly most of the staff don't care. I think it's rare that a restaurant doesn't let you take photos these days, and so if they do, then maybe they SHOULD put a notice up, if only so that the staff has a proper leg to stand on when a customer asks "why?" For me I don't think "that's what the management said" is a good enough reason, but if they had a sign I'd at least think "oh well obviously they've thought this out enough to put the sign up."

Anyway, overall I guess I just feel like I have a right to take photos of my food and somebody had better give me a damn good reason for taking that away!
starbucksweetie
Dec. 14th, 2008 04:09 pm (UTC)
"definitely not applicable in the current climate of avid food blogging" - I don't think food blogging is an avid activity such that a court will interpret a reasonable person would be expect to do in a restaurant.

"hat is the difference between a food blogger or just a person who likes to take photos of food coming in and taking photos and a reviewer for a newspaper coming in and taking photos of the food? They're not always going to tell/ask the proprietor because a lot of reviewers like to stay quiet about their identity right?" Most often, for a restaurant review - reviewers will go in for a meal, take notes and then subsequently go into the restaurant *after* the review to take pictures of the food/restaurant. Therefore, they have to ask permission. They do not take pictures *during* the meal.
catpuccino
Dec. 15th, 2008 12:54 am (UTC)
I do think that food blogging IS common enough an activity nowadays, there are thousands (tens of thousands? I read the amount recently but can't remember) and it's growing everyday. And I think it's more likely to be whether the reasonable person would expect a person to take photos in a restaurant (and then subsequent purposes for those photos = another issue). If you were in a court I guess you'd probably be showing evidence to prove this is the case?

Ok, point taken about the reviewers. But really, I don't see why taking a photo of the food is any worse than eating and then writing about it without photos?

Thanks for writing about this though, I'm reading through the hoo-ha surrounding this and it's all very interesting! I don't necessarily agree with a lot of the viewpoints (I'm much more on side with this Mack guy than all the others arguing against it, but then I would be because I like to take food photos and also because I'm really against "the man" taking away our right to do things...) but I think that's a good thing in the blogging world! Disagreement breeds interesting debate right?

On a non-legal level, what do you think of his arguments though? Legal arguments are all very well and good but I do think that they can become highly technical and dependent on the laws of the particular area etc so given we're from different countries the same case could give rise to very different results!

Nerdy law fact, I read an article saying that a judgment had just been handed down that documents could be served via Facebook in Australia!
starbucksweetie
Dec. 15th, 2008 01:21 am (UTC)
On a non-legal level, I think food blogging is annoying to your dining companions because it disrupts the "flow" by waiting to take pictures.
catpuccino
Dec. 15th, 2008 09:03 am (UTC)
I'm not the type of person that takes a lot of photos to get the pic right, I usually just whip out my camera and take a quick couple of pics, so I don't think there's that much disruption. But I guess your opinion is why it helps to have other friends who are also food bloggers! For me, I enjoy reading food blogs, a lot, so I appreciate that people go to the trouble to shoot, upload and blog about what they eat! And I've tried reading food reviews without pictures, I don't care how good a writer you are, it's just not the same at all.

Re: some guy posting below about it being more than the food - I'm only commenting on the food because that was the only aspect I really cared about. I'm not totally convinced by this "but competitors will steal our ideas" thing, because as I said, they're still allowed in and on repeated visits could see what it's like anyway...
starbucksweetie
Dec. 15th, 2008 10:41 pm (UTC)
It's probably easier to steal someone's ideas from a photograph (based on one visit), rather than taking the time for mulitple visits.
rhiannnnnnon
Dec. 14th, 2008 08:08 pm (UTC)
OT but i really love your journal, i could definitely see you as an internet-famous blogger someday!

i don't see the big deal about taking pics of food, people do it all the time. i'm not a law student [yet], nor do i purport to know anything about this topic, but it seems that taking pics of products (like the above person said in IKEA) or people is more applicable to a privacy infringement than food. especially if you are paying for the food, it's technically yours. you own it now, right? like what if you got carry out & took a picture of that? LOL
starbucksweetie
Dec. 14th, 2008 08:22 pm (UTC)
I agree with your argument that payment equals ownership and that you can do whatever you want with stuff that you own.
(Anonymous)
Dec. 15th, 2008 09:21 pm (UTC)
But IKEA has the same products in a publicly-distributed catalog. They display the products in a public place. You can just as easily purchase a product, go home & photograph it, & return it.

Re: someone else's comment about food blogging being mainstream -- nevermind just FOOD blogging. Think about blogging IN GENERAL. So many bloggers post photos of stuff like the interior of malls/stores, them trying clothes on in fitting rooms, etc.

Regarding the security argument @ IKEA -- how come museums & a lot of places like that (where there could potentially be security issues as well) it's acceptable to take photos?

I think in a lot of cases the issue for the store/restaurant owner is actually more about control of their public image, than it is about ownership of their design/look/etc.

I just remembered -- some bridal stores also don't allow photos until you've paid for the dress. They *claim* it's because the designers don't allow it, b/c they don't want their design copied. The real reason is that the store doesn't want you to take that photo to another store & order it from an un-authorized dealer (or an authorized one that just doesn't have that sample) for less.
starbucksweetie
Dec. 15th, 2008 09:33 pm (UTC)
Why bridal stores might not allow photos:

When people try on clothes and take pictures of them in it without intending to buy, it wastes the salespeople's time and the store's resources in general.

What is wrong with a store/restaurant trying to control behavior that they have determined is unreasonable? They still own the space.
bobbyb2
Dec. 16th, 2008 02:44 am (UTC)
Why said they don't necessarily intend to buy??? Believe me, I intended to buy. Still, no photos. Which made the decision harder & I wasted more of their time.
(Anonymous)
Dec. 16th, 2008 02:44 am (UTC)
lol, WHO, not why
starbucksweetie
Dec. 16th, 2008 02:55 am (UTC)
Does your intention to buy mean the store can't have control what's going on their private property?
(Anonymous)
Dec. 15th, 2008 12:40 am (UTC)
It was more than just food!
Some of the replies are referring to the photos of the food, However, please don't lose sight of the fact it was also more than the food. As Sharon Yeo wrote in her blog, "The most memorable moment of the night had nothing to do with the food or anything tangible, but occurred when Mack was taking non-flash shots of the restaurant interior. The manager immediately came up to him and questioned his actions" (http://tinyurl.com/59o8of).

My original blog entry is linked to above, identified as "EDIT: Here's another response."

Tony Ratcliffe
www.RatcliffeWealth.com
starbucksweetie
Dec. 15th, 2008 01:17 am (UTC)
Re: It was more than just food!
Good point!
prosecutor_will
Dec. 16th, 2008 02:36 pm (UTC)
My first thought is that the rogue photographer wouldn't have a problem claiming fair dealing for the purpose of criticism. But I expect they'll ask permission from now on just as a matter of courtesy.

I used to work at a bar, and we would forbid people from taking pictures inside (e.g. www.londonbars.ca) in case they unwittingly exposed under-age drinking taking place.

A food blog is one of those things I subscribe to with the best of intentions and end up skipping day after day.
starbucksweetie
Dec. 16th, 2008 06:33 pm (UTC)
It's interesting, I never thought of the underage drinking. With regards to fair dealing, I don't think there are copyright issues here.
( 25 comments — Leave a comment )

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