After years of teaching photography workshops in Tokyo, many of them focusing on street photography, some of the most common questions I get are about the legality of conducting street photography in Japan. Of course, I’ve researched this many times over the years to make sure I am up to date on the rules in case the law has changed, so I want to share my findings.
I need to stress that I am NOT A LAWYER, and this is NOT LEGAL ADVICE. I am only sharing my own personal understanding of this issue in Japan. I operate under assumptions that I’ve made based on my research, but I do not recommend that you do the same as I do. Instead, I recommend that you do your own research and establish your own understanding. This article is simply meant as a starting point, especially since there is very little relevant information in English. My research is primarily based on the Japanese Wikipedia entry for portrait rights, as well as a few other articles around the web.
So, with the disclaimer done, let’s get into it. Is street photography legal in Japan? Well, first we should break down street photography into two distinct actions: the act of photographing people in public, and the act of publishing someone’s image without their permission.
Photographing People in Public
In Japan there is no explicit criminal law prohibiting taking photos of public spaces, or the people in those public spaces. Of course, the definition of a public space can be blurry, but in past court cases ‘common sense’ was used to determine this. I think it’s common sense that a busy public sidewalk is a public space. The metro is also a public space. Parks, restaurants, the beach, shopping malls, and other places where people can freely come and go are public spaces. But a toilet is obviously not a public space, at least not by any commonsense definition.
Essentially, in Japan there are no criminal laws covering portrait rights, however photographing people can infringe on the right to privacy. So, although there is no law prohibiting photography on a public street, there certainly are laws against pervy photos and other obvious breaches of privacy rights. So, again, I use my common sense. I definitely avoid photographing people in any situation that might be infringing on their right to privacy, but a person showing their face on the street has no reasonable right to privacy. So, in the sense of photographing people in public spaces, there are no laws against street photography in Japan, as far as I am aware.
Publishing Photos of Strangers
Just because you take a photo of someone does not mean this photo will be published. I have taken countless photos of people in public and many of them have never been published in anyway, online or in print. Often the reason is very simply that the photo is not interesting, but sometimes when I consider the picture after it is already taken, I may realize in retrospect that it does, at least somewhat, violate the subject’s privacy. For example, I’ve taken plenty of photos of drunk people passed out on the sidewalk, which is a rather common site in Tokyo. In the moment, it always seems interesting to me—a kind of dark slice of life in Tokyo—but often I later feel it is wrong to show a person’s face when they are at such a low point, so at that moment I choose not to publish it. I may still do so, however, if I feel the photo has some artistic value.
I developed this ethos because in Japan, Article 21 of the Constitution guarantees the right to freedom of expression. On the other hand, portrait rights are not inscribed in the constitution or in criminal law and violating them is not a criminal offense. Furthermore, I have learned that freedom of expression is given priority over portrait rights in legal cases where this issue comes up. So, I consider it reasonable to show someone’s face, even in a potentially embarrassing state such as drunkenness, as long as the photo has some artistic merit and is expressing something beyond mere exploitation of the subject’s bad situation. For instance, I apply this same ethos to photos of the homeless, as well. Bear in mind, freedom of expression is unlikely to be valid defense in the event that an individual’s privacy was breached. A pervert sneaking photos in a locker room won’t get away with the argument that they were just trying to express themselves.
So, let’s say you publish a photo of someone, not even an embarrassing one, just a normal portrait, can you get in some trouble? Well, we already established that it’s not a criminal offense as there are no criminal laws covering portrait rights in Japan. So, can it be a civil offense? Meaning, can someone sue you for using their likeness in a published image? Yes, they can, but only in certain circumstances.
Portrait Rights are a Civil Matter
First of all, we must draw a line between commercial and non-commercial work. If you use someone’s portrait in commercial work without their permission, they absolutely can sue for damages and will likely win. Commercial work means things like advertising, images on products, or in media like video games, movies, etc. Commercial work does not include fine art, editorial, journalism, and of course street photography. So, if you post your photo on Instagram or even sell fine art prints, it is not commercial work and therefore you are unlikely to be sued on those grounds. But…
Even if the work is not commercial, there may still be grounds for a civil suit. The subject of your photo would have to prove that the act of publishing their likeness caused distress, mental pain, or other damages. If the court deems their claim to be valid, you may be liable to compensate the individual for damages done by the act of publishing their image. Let’s look at a concrete example.
In 2005 there was a civil case of a young woman who was photographed in public wearing a shirt simply with the word ‘sex’ written on it. Without her permission, the photo was published on a fashion website with her face in clear view. Afterward, she was identified and bullied online. The Tokyo district court ordered a payment of 350,000 yen (about 3,200 US dollars) to compensate her for mental distress and the infringement of her privacy rights.
This was a real case, but we can imagine how it might apply to my earlier example of a drunk person on the street. They might find themselves published online, or worse, someone they know might recognize them, causing mental stress or perhaps the loss of a job or other personal setback—it could be anything. At that point the individual might have a good reason to sue the photographer. So, that’s why I think twice before posting a photo of someone in a potentially compromised or embarrassing situation. But I might still do it if there is artistic merit because freedom of expression is held above portrait rights in Japanese courtrooms.
Some other things that judges might consider in such cases include:
Is there any public interest in the subject, or in other words is there journalistic or editorial value to the subject?
Was the subject doing something private at the time of being photographed?
Is the place public or private?
Does the photo benefit society in some way, or is there no justifiable purpose for taking the photo?
Was the photo taken while violating some law (e.g., trespassing) or a breach of common manners?
Basically, Street Photography is Legal in Japan
Again, I’d like to remind the reader that I am not lawyer, but my personal conclusion is that street photography is legal in Japan. It is not a criminal offense to take photos of people on the street as long as we follow common manners (don’t take creepy or pervy photos, duh). Also, since street photography is an art form it has cultural relevance or artistic merit, so it can be published freely and legally. However, there is always a risk of varying degree that the subject in the photo may somehow be hurt by having their likeness published, and they may sue the photographer to recover compensation for damages. As street photographers we need to keep this in mind and consider each photo case by case. To that end it helps to come up with a personal code of street photography ethics, but that’s a topic of another article.