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Trespassing
By Andrew Hudson
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"I was photographing at a (shopping mall, restaurant, office building, hotel) and the security guard told me to stop. They said I was trespassing and would be prosecuted, is this true?"
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Disclaimer: I am not a lawyer and this is not legal advice. Use at your own risk. The following is my opinion but it may be wrong, misleading or inaccurate -- do not rely on anything written here. Laws vary by province and change over time. If you know of an error, please let me know. If you have a legal question, please consult a lawyer.
For more info, see: Legal Books | Legal Links
Trespassing is the act of being on property without permission from the owner or lessee. Note that this is about where you are, not what you're doing -- trespassing is legally separate from photography. You can be illegally trespassing and still be legally taking photographs.
What actually constitutes illegal trespassing differs by jurisdiction. All a property owner can do is ask you to leave and escort you off the property; they can't stop you from taking photographs or seize your equipment or hold you.
If you are at a mall, shop, hotel, restaurant, park or other place where the public is normally allowed, you are not immediately trespassing. Permission to enter is assumed. However, that permission can be revoked. At the moment that a security guard (or other agent of the owner or lessee) demands that you leave, then you are trespassing and you should leave. If you do leave, you cannot be prosecuted as you are complying with the change in status. If you do not leave, they have to call a law enforcement person to arrest you. The mall can say that you are banned, in which case future entry will be trespassing.
Property owners and security guards are restricted in what they can do. They can only use reasonable force to remove you. If you are not posing an immediate threat, they cannot use force and their only recourse is to call a law enforement officer. They cannot arrest or hold you (except at U.S. railroads). And they can't do anything if you are on, or when you get to, public property and rights-of-way. Thus, you can stand on a public street and photograph.
Can You Be Prosecuted?
It depends upon where you are as different places have different statutes.
In California for example, your mere presence on land which is open to the public is not illegal -- you must also have "the intention of interfering, obstructing or injuring" people or business activity to be illegally trespassing (CA penal code 602j). If you're on land not open to the public (other than a dwelling), it's not illegal unless you refuse or fail to leave "when requested to do so" (CA penal code 602n). You can only be arrested by the police after they've received a signed "Trespass Arrest Authorization letter."
In California, trespassing (first offence) is a misdemeanor (minor crime). In England and Wales, trespassing is not a criminal offence, just a civil wrong.
No Photography Signs
Property owners can differentiate upon usage, for example, if they post a "No Photography" sign, you can legally go on the property but as soon as you start taking photographs you'd be trespassing.
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