In our latest blog, we take a look at bird photography and the issues that people need to consider to ensure they stay within the law and don’t disturb wildlife.
The explosion in digital photography and associated technology in the last couple of decades, while great for encouraging people to take more interest in nature, has raised concerns about increased disturbance of birds, especially of our rarer and more sensitive breeding species. Often pictures seen online are subject to complaints, but current technology makes it very difficult to know whether the photographer caused any adverse issues.
So what do you need to consider?
Firstly, the law. Generally, it is not illegal to photograph birds. However, any bird can be sensitive to disturbance while nesting or roosting so best practice should be followed to minimise this.
While all birds are legally protected, many of our rarer and more sensitive species are specially protected under Schedule 1 of the Wildlife & Countryside Act. During the breeding season, which can vary between species, these birds are protected at or near their nests right from nest building through to having recently fledged dependent young.
Schedule 1 species can be photographed away from nests and outwith the breeding season without a licence but when nesting, a NatureScot licence for photography will usually be required. The licence actually covers the photographer for disturbance to the birds in the course of the photography, rather than the photography in itself.
What is an offence under the Wildlife & Countryside Act?
The Act covers both reckless and deliberate disturbance. A reckless offence occurs when it can be foreseen or there is a likelihood that continuing a course of action will result in an offence, for example if a person set out to take photos of a nesting bird (Schedule 1 or not) knowing they were likely to cause disturbance in the process. Reckless offences can potentially be mitigated by recognising the potential for disturbance, and retreating from the nest as quickly and safely as possible and not revisiting.
Deliberate offences are where someone has set out with the intention to commit an offence, such as purposefully scaring a bird from a nest to obtain a photograph while the bird is in flight. Playing recording of calls to get Schedule 1 birds into the open to view and photograph is also a disturbance offence without a licence.
In the worst cases such disturbance can cause breeding attempts to fail, however it is the disturbance, not the consequences of it, which is the offence.
There are a number of ‘grey areas’ in relation to breeding Schedule 1 bird photography. Some rare breeding bird sites are well known and viewable from public roads, tracks etc. or on nature reserves and easily viewed from reserve hides. In such cases it comes down to risks of disturbance to the bird. If they are behaving normally, not alarmed or concerned, then it likely safe to take photos. In these situations there is a level of habituation by the birds to human activity they consider non-threatening. However, leaving a hide, vehicle, road or path to get closer may cause the birds to be disturbed. Bird behaviour in habituated situations cannot be assumed to apply elsewhere.
How to know if birds are disturbed
Different species behave differently, but many of the signs are obvious. Most birds will alarm call, usually insistent, repetitive and loud calls. Some combine this with mobbing behaviour, flying around calling. Others will run off, leading an intruder away from a nest or young. This can include the bird behaving as if it’s injured, dragging its wings. Others will fly off, abandoning the area and not returning until they think it’s safe, which can be several hours later. There are also some more subtle signs – birds may take up alert or ‘threat postures’ fluffing up or sleeking down feathers, preening their feathers with their bill in an agitated way. If you start to see these types of behaviours it’s time to back off – they usually mean there’s a nest or young nearby which may not be visible.
Other factors can affect the impact of disturbance. If the adults leave eggs or chicks unattended they are vulnerable to the weather; cold, wet and windy weather leads to chilling whereas really warm weather can lead to overheating. Approaching a nest and leaving a trail to it, or removing vegetation near the nest to get a good picture, can leave it more exposed to a risk of predation by other mammals and birds.
It’s also important to remember that even where birds are nesting close to walk routes, roads and tracks and appear unconcerned, the cumulative risks of many people stopping may become an issue. The welfare of the birds comes first in all cases whether specially protected or not.
Related to this is the fact that many breeding locations of rare and more sensitive species are not widely known and it is best practice not to publicise them, please do not post pictures online with their locations unless it is an already publicly known site, like a nature reserve.
Outwith the breeding season, best practice should still be followed. A regular concern is disturbance to communally roosting waders and waterbirds. Disturbing birds whilst they are resting can seriously affect them, how do you function when you’ve had no or disrupted sleep? Roosting flocks will often raise their heads becoming obviously alert if they are approached and birds will often start to shuffle away from the approach before eventually taking flight. Again, if you see these behaviours back off.
Ultimately, it is your responsibility to minimise disturbance and if in doubt don’t take the risk. Please enjoy birds and your photography responsibly. Below are links to more helpful guidance and information.