Willkür

"Google Street View is allowed to show any details of our cities on the world wide web. But a father and his son are not allowed to take pictures of famous London landmarks."

 — Klaus Matzka (from this Guardian article)


"Willkür" (?), like "kindergarten" and "angst", is one of those German words that have no real English counterpart. Unlike kindergarten and angst, it's not been adopted into English - but it really should be.

In a legal sense, willkür means a state or a state's authorities making arbitrary decisions not founded in law. While human beings are generally accorded free will and the right to arbitrarily decide what they want to do, the whole point of a modern state is that it functions according to rules. Under willkür, agents of the state make and enforce decisions they have no right to make or enforce.

As I keep on insisting to anyone who will listen, it's almost more important to have clear and consistent laws than to have fair ones. Consistent, known laws mean that you can tell when you are crossing the boundary from the legal to the illegal. They mean that you don't have to worry about inadvertently breaking the law.

Badly written, vague laws make that boundary fuzzy, and willkür thrives in these fuzzy boundaries. If people don't know if they are on the right side of the law, they can be manipulated and intimidated through their worries that they may be breaking it.

And the authorities - the police and courts - often don't quite know themselves. Laws are enforced inconsistently and whether you get punished for your actions depends not as much on the law but on chance and the mood and personal opinions of the authorities you come into contact with.

In the UK, there have recently been a lot of cases where police or security guards were under the impression they had the power to stop people from taking photographs in public spaces. Some photographers complained, but I imagine the majority meekly handed over their memory cards.

There is no law against taking photographs as such - though section 45 of the Terrorism Act 2000 does allow constables to "seize and retain an article [...] which he reasonably suspects is intended to be used in connection with terrorism". Of course, what reasonable suspicion entails is another question. Is taking a photograph of a shopping mall or train station a suspicious activity? Is trainspotting hereby outlawed?

Certainly, there is no such thing as "camera licence", which is what a police officer recently demanded of a photographer in Ipswich, according to the BBC.

Given the impression that a law exists that allows police to arbitrarily stop people from taking photographs for no stated reason, many people will err on the side of caution and hand over their cameras or memory cards, even to a security guard.

People end up conforming to an unofficial rule - "do not take photographs in public" - made up and enforced by a scattering of overzealous police. A minority enforcing their will on the vast majority through the respectability of an uniform, bypassing any democratic process.

Section 76 of the Counter Terrorism Act 2008 takes this further:

"A person commits an offence who elicits or attempts to elicit information about an individual who is or has been [...] a constable, which is of a kind likely to be useful to a person committing or preparing an act of terrorism..."

The upshot of this, as mentioned in various places, is that taking a photograph of a police officer may now be illegal. Sometimes. Sometimes not. Depends on whether the police and courts decide that a given photograph is "of a kind likely to be useful to a person committing or preparing an act of terrorism".

This section is a prime example of the kind of badly written law that enables willkür. I understand that the law was created to shield police from people taking photographs of them and using the pictures to incite others to attack them. That is a valid concern, as police have been targeted by groups like (recently) the CIRA.

But it's a completely unnecessary law. It already is illegal to incite others to assault a person, be they a policeman or not. I'm really not sure why parliament felt the need to enact such a superfluous law, except as a way to be seen doing something about national security.

But this unnecessary law does potentially lend itself to abuse: given its vagueness it could be used to quash pictures of, for example, police beating up someone. I don't think this was the intent of the law, nor that it is certain to be abused in that way, but the potential is there. Even if the government had no intention of using the law like that, they have enabled all kinds of people with their own agendas to do so.

There are other recently enacted laws, many with a worthwhile intent at the core, that are so fuzzy they can easily be abused. I won't go into them now to keep this article at a sane length, but may visit them in another post.

To summarise, these kinds of laws force people to live in a perpetual state of uncertainty - am I breaking the law by taking this picture, waving this placard, giving away this flyer, standing in this spot? Many, in response, will be unwilling to do anything that might possibly be illegal - out of fear that they might encounter a vindictive policeman followed by an unsympathetic judge, and be punished for something a hundred others do in broad daylight, unmolested.

And so, ordinary civil courage is suffocated. And if people are too scared of the capriciousness of law to make themselves heard, true democracy will die without us even quite noticing.

So what can you do about this? Don't be intimidated. Know your rights. Keep on taking photographs. But just in case, back up your memory card as often as possible.