Informed Consent and How to Fix it

Photo by  Ryan Libre . Note from photographer: “While shooting for this project about people with drug addictions, I was concerned whether or not the subjects were clear that they would continue getting their medicine whether or not they consented to taking the photograph. I felt that there were some aid workers who were very effective at communicating this (like the man pictured above), however others were not.”

Photo by Ryan Libre. Note from photographer: “While shooting for this project about people with drug addictions, I was concerned whether or not the subjects were clear that they would continue getting their medicine whether or not they consented to taking the photograph. I felt that there were some aid workers who were very effective at communicating this (like the man pictured above), however others were not.”

 

When I first launched the Photography Ethics Centre nearly two years ago, I came across an article titled “‘Informed Consent’ and Why it Doesn’t Work”. I spent weeks labouring over a response, but never published it. Over the past few months, the subject of informed consent has come up several times in lectures and workshops I have given. I now feel that it is necessary to tackle some of the challenges of informed consent by publishing a response.

The 2016 article by Sean Hawkey and Paul Jeffrey draws attention to crucial ethical dilemmas in development photography that create challenges for obtaining informed consent. However, the authors do not offer an antidote to these challenges. Instead, they argue that the concept of informed consent is flawed and should be abandoned altogether.  

While I agree with many of the challenges they cite, I disagree with their conclusions. The complexity of these issues does not give photographers a free pass to ignore them.  I believe that we have a responsibility to deal with these issues head on. In this article, I intend to build upon on the problems they highlight to offer possible solutions.

Before we go further, let’s establish a working definition of informed consent. At its most basic level, informed consent is permission that a person grants to be photographed, with full knowledge of where, how, and for what purpose the photographs will be used, and with the understanding that they can say “no” without consequence.

Consent in a Development Context

There are many ethical challenges in development contexts, particularly in relation to consent. There is a certain power dynamic between the person who receives aid from a development organisation and the person hired to photograph the activities of the development organisation. This dynamic makes it difficult for the aid recipient to object to being photographed. They might fear being denied continued support from the development organisation if they withhold consent, or they may believe that their consent entitles them to increased support.

The authors open their article by raising this very issue, concluding concisely: “If they can’t easily say no, it isn’t consent.” Therefore, they reason, consent is not possible in development contexts. It is important to note that the authors do not believe that development photography should stop because of aid recipients’ inability consent. Instead they believe that photography in development contexts should continue without asking consent.

It is absolutely true that people who benefit from development programmes may feel pressured to consent to having their photograph taken while they receive free medical treatment or while they pump water from a newly donated well. The power imbalance in these relationships is undeniable. It is also true that consent cannot be considered consent if the individual does not feel able to say “no”.

Yet we cannot simply say that, because there is a power imbalance, aid recipients are unable to consent to being photographed, and we should, therefore, photograph without asking for consent. We cannot deny their agency as active participants who have choices in how they navigate this relationship and who have rights over the use of their image.

We can, however, communicate effectively to ensure that people understand that their care will in no way be impacted by their choice to consent or not consent to being photographed.

The authors go on to describe the “entourage” that often accompanies photographers at development projects. They rightly explain that this entourage may make it all the more difficult for people to say “no” to being photographed. Some of this entourage might be unavoidable; in some contexts photographers might be required to travel with police or military personnel. We might not be able to limit the number of people that accompany us when we go to photograph or to ask for consent.

We can, however, make sure that we know the people who are with us, and understand their relationship to the beneficiaries we are hired to photograph. We can educate ourselves about the context so that we are sensitive to dynamics between the different people who are present. Understanding the context prevents us from accidentally aligning ourselves with someone who is responsible for harm to the community or someone who wields exceptional power, who could inhibit an individual’s ability to say “no” to being photographed.

We, as photographers, are responsible for creating an environment that reduces pressures to consent. We do this through our communication, through our actions, and through the company we keep. We cannot shirk that responsibility by saying that it is too complicated or difficult.

Consent to Multiple Media in Contexts of Media Imbalance

The authors explain another very real ethical challenge: How can we ask someone who has never used the internet for permission to use their image on social media?

Access to media is not universal. Telling someone that their photo will appear on Facebook or Instagram doesn’t mean much if they’ve never been on the internet. If they don’t have the reference points, they can’t truly give “informed consent.”

They are absolutely right; access to media is not universal. But this should not preclude us from communicating effectively what the implications of the use of their image might be. In order for them to effectively consent to using their image on Facebook, they do not need to know what Facebook is or how it works. They need to understand what it means to have their image on Facebook, e.g. who can see it, how long it will be available or visible for, etc. 

For example, instead of saying, “We’d like to ask your permission to use the photographs of you on our Facebook page;” you could say, “We’d like to ask your permission to use the photographs of you on the Internet. This means that people all around the world will be able to see your photograph.” You could even give them an estimate of how many people might see the image by using the number of Facebook followers on the page or the number of unique hits on a webpage.

Lack of access to media does not equate to a lack of ability to understand the core concepts. When working with people who do not have the same access to media, we have a responsibility to break it down to core concepts.

The authors argue further that it is impossible to obtain informed consent when the aid and development agencies themselves do not yet know how they will use the images. Why, then, don’t we make it clear that the image may be used in a long list of possible ways? Or better yet: Why don’t we give the people in our images a choice?

A survey conducted by Save the Children found that beneficiaries who are photographed feel that their dignity is upheld when they have “a choice in how they are represented and a clear understanding of the purpose and value of sharing their image and story.”

Maybe a person would choose to have their image used in print material, but does not want their face posted online. Maybe they are only comfortable with their image being used for the next 5 years. Maybe they are happy for their image to be used anywhere and for any length of time, but do not want their name revealed.

Consenting to be photographed is not the same thing as consenting to have that photograph published in an annual report or plastered on the side of a bus. We need to make sure that our consent processes account for these distinctions and are structured in a way that enables multi-layered consent.

What is actually stopping us from giving the people in our images these options and allowing them some level of control over how their image is used? Time and energy. Ethical practices take more time and more work. But it would only strengthen our practice as photographers if we exerted ourselves a little more in order to respect the agency, dignity, and rights of the people we photograph. 

Mistaking a Problem with Consent Forms for a Problem with Informed Consent

In their critique of informed consent, the authors describe a situation that one of them encountered when working for a development agency in Central America:

One of us was once given a three-page release form in English, written by lawyers and full of legal jargon, to be signed by people photographed during an assignment in Central America. Neither the community members nor the local agency staff spoke English, and some were illiterate ... It’s a lot harder to be seen as a sympathetic and fun person when you’ve just spent half an hour going through a legal document with them, trying to convince them to sign it.

There is no doubt that this is inappropriate and that this process is cumbersome, but using this example in their argument against informed consent was a mistake. This can’t be evidence of the pitfalls of informed consent because it is not an example of informed consent. They have misidentified the problem by mistaking a problem with consent forms for a problem with informed consent.

Along similar lines, they argue that informed consent often offers more protection to the organisations that use photographs than it offers to the people being photographed. This is a crucial point, and I would agree with the authors that consent forms are often devised for the protection of organisations rather than for the protection of the individuals in the images. However, this quote again conflates consent forms with informed consent.

To clarify the issue: informed consent and consent forms are not the same thing.

Informed consent is a process of informing the person being photographed about how you would like to use their image. Informed consent creates space for the subject to ask questions, to stipulate conditions, or to say “no”. Informed consent approaches consent as a process that is constantly renegotiated, making it clear that the subject can withdraw consent at any time.

Consent forms provide evidence of an agreement.  Consent forms can be used in the process of informed consent if they are used correctly.

However, consent forms often treat consent as something that is fixed, not allowing the subject to easily withdraw consent if they so chose. Additionally, people may be intimidated by the idea of signing a consent form and feel more pressure to comply without full understanding, this is especially true in contexts where signing legal documents is not common practice. In these ways, consent forms can provide more protection for the organisation than for the subject.

Finally, they point out that, even when informed consent does not involve a consent form, it is still a cumbersome process:

Informed consent isn’t necessarily written, of course, but with or without documents to sign, carefully informing subjects and asking for consent ruins the spontaneity of the photographic process, it can easily give people anxiety and concerns, it forces the photographer to assume a non-photographic role, it changes the whole atmosphere and takes up time.

Fear that the subjects will have “anxiety and concerns” and say “no” is not grounds for foregoing the consent process. People have the right to say “no”, and we have the responsibility to give them that option with all the facts. Having all the facts is the “informed” part of informed consent.

In this excerpt the authors also object to having to taken on a non-photographic role. Photographers have to do a lot of things that are not purely photographic. We make portfolio websites, we negotiate prices, we write grant proposals, we navigate access into communities, and we build rapport. Having a relationship with the people we photograph based on dignity and respect should not fall outside of our purview.

Problems and Resolutions for Ethics in Development Photography

Taking “informed consent” seriously means seriously infringing our ability to gather images. If a group of people is protesting their lack of access to water or land and the police begin to beat them, are we supposed to ask them all to stop, work through our translator to explain “informed consent” and get them to all sign releases, and then announce, “OK, you can start beating them again”?

Although this is a parody of the actual process, it does effectively highlight some of the key challenges to informed consent that we have discussed in this article.

The authors are right that there are problems with the way that consent is currently handled within development organisations. But my conclusion is markedly different from theirs: Whereas these authors want to throw out the idea of informed consent altogether, I want to look into it more deeply, identify the issues, and find a way to resolve them as best we can.

We Need Photographers who are Ethically Literate

The authors cite a lack of trust as the reason for the imposition of informed consent policies, saying, “some aid agencies don’t trust photographers to be ethical.”

If we want development and aid organisations to have more trust in photographers, we need photographers who are ethically literate. 

We need to ensure that photographers are trained to handle ethical nuance, to make sound ethical decisions based on the information at hand, and to understand how context can change the ethics of a situation. We need photographers who know how to navigate the challenges of informed consent and how to use consent forms, if their employer requires them. We need photographers who understand that if they are “trying to convince [people] to sign it”, then they are doing it wrong.

We Need Better Communication with Employers

Problems between aid agencies and photographers could have a lot less to do with trust and a lot more to do with communication. It is true that employers do not always understand the realities on the ground; but instead of giving up on informed consent, let’s open a conversation with them to change the process. 

If prior consent is not appropriate for the type of work that we have been asked to do, then let’s explain to our employers that prior consent is not always the more ethical option. If the consent forms that we are instructed to use are inappropriate for the context, then let’s work with our employers to change them. If we do not have enough time to build rapport with the communities we photograph or to communicate informed consent, let’s demand more time for each assignment.

Of course, improved communication with employers and their cooperation with photographers to improve ethical practices in development photography necessitates two things: (1) that the employer is open to discussion and to change, and (2) that the photographers are ethically literate. Neither of these are foregone conclusions.  

Conclusion 

The authors show a photograph of a truck full of people. They are coffee pickers. Some are minors, some are adults. Traditional methods of obtaining consent would mean that the parents of the minors must give consent for the image to be taken and used. If the parents are not present in the truck, the photographer would need to follow the children into the local villages to find their parents. The authors write: “Seeking informed consent in this case could take so long, it wouldn’t be worth the trouble.”

Maybe it seems like a lot of trouble to ensure that everyone on the truck understands how and why the image will be used. Maybe it seems time consuming to go find the parents of the minors and obtain consent.

But maybe it is important for the people in that truck to have their story told. Is it really that big of an inconvenience to take some extra time out to make sure that we have consent to tell their story the way it should be told, in a socially responsible way? 

In development photography, we are taking their image and using it not only for their gain as a beneficiary of the development organisation, but for our gain as well. We add them to our portfolio, gain professional experience and contacts, and get paid by the organisation that that image will in turn raise money for. We need to acknowledge their rights in this process.

Towards the end of their article, the authors give an example of challenges of obtaining prior informed consent from Somali refugees walking through the Dadaab camp to be resettled:

Under ‘informed consent’ rules that require prior approval, the photographer would have had to stop the tired family, explain the intricacies of usage and consent, then get their signatures on the paperwork before allowing them to continue their trek across the hot desert.

Maybe instead of stopping the family to explain and obtain informed consent, we could instead walk with them awhile and have a conversation.