April 4, 2016

Right to Record

Q: Can I record or take photos of the police during a protest?

A: Yes. In terms of police standing order 156 and section 16 of the Constitution, “media representatives”, which should be read to include citizen journalists, can record or take photos during protests, without the need for permission. (You can access an information card to download and keep with you to advise the police here.)

IMG_4416The right to record refers to an individual’s right to record and/or report on the scene of an event, which is disseminated locally or globally through the use of modern media, most often the internet. Common examples include the sharing of photos or videos, blogging, online social platforms, social media networks, podcasts etc. It has become common practice in the context of protests for participants, official monitors and observers to exercise their right to record.

The right to record serves as a vital component in ensuring police accountability whilst also providing the public with access to independent, reliable, accurate and diverse information about protests.

In recent years, and in various countries, there has been an escalation in the threats to, and violations of, the right to record. These include harassment, intimidation, destruction of property, death threats, attacks on physical integrity, arbitrary arrest and detention, prosecution, prison sentences and/or fines and in extreme cases – assassination. In South Africa the South African Police Service (SAPS) has been implicated in some of the more minor violations.

GC34The right to observe protests as well as the right to seek, receive and collect information about protests is protected under international law. The right is grounded in article 19 of the Universal Declaration on Human Rights and article 19 of the International Covenant on Civil and Political Rights which guarantees the right to freedom of expression. The right to freedom of expression protects all forms of expression and its means of dissemination, such as electronic and internet based versions (see United Nations Human Rights Committee General Comment 34).

In his 2015 Report to the United Nations Human Rights Council (UNHRC), United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions Christof Heyns, urged States to ensure that the individual’s right to record public events is respected and protected by law enforcement officials.

In a their joint report on the proper management of assemblies Heyns and the Special Rapporteur on the rights to freedom of peaceful assembly and of association, again urged States to protect the individual’s right to record protests and strongly condemned the confiscation and/or destruction of recording equipment by law enforcement officials without due process.

SO156In South Africa, SAPS Standing Order 156 guides officials in their duty to respect an individual’s right to record. The standing order provides that ‘media representatives’ must be treated with courtesy, dignity and respect. It also stipulates that whilst in certain circumstances the publication of images may be prohibited, a ‘media representative’ may not be prohibited from taking photographs or making video recordings. In addition, the standing order prohibits verbal and physical abuse of ‘media representatives’ as well as the seizure and destruction of recording equipment (unless an exhibit in terms of a law).

There are concerns that the order is outdated, vague and non-inclusive. It has had the effect of creating a negative and circumspect perception of journalists and individuals who exercise their right to record during protests. The Standing Order is currently under review and it is hoped that its revision will bring it in line with the South African Constitution.

Text provided by Christine Grobler (christine@lrc.org.za)