Do you have a right to take that photo?

Taking a person’s photograph without their consent has caused significant concern over the past few decades.

The increased use of mobile phone cameras and the ease and accessibility of online publication has left many Australians wondering the legal rights and wrongs of taking photographs. This article addresses the balance between a person’s right to privacy, on the one hand and the freedom to take photographs on the other. Privacy advocates may disapprove but those who love to digitally capture their world may be pleasantly surprised.

  • Case law and statutory interpretation
  • Photography in public spaces
  • Photography on private property
  • Photography from a public space onto private property
  • Taking a photograph and using it for commercial purposes
  • Australia’s comparison to other countries
  • Plans for future reform.

Case law and statutory interpretation

Unlike other countries, there is no right to privacy that protects a person’s image in Australia. There is also no tort of invasion of privacy, but in the decision in ABC v Lenah Game Meats (2001) HCA 63, the High Court did not exclude the possibility that “a tort of invasion of privacy may be established in the future.” Despite Australia not currently recognising an action for breach of privacy, photography without consent is not completely unrestricted.

Photography in public spaces

Taking a picture of a person in a public space without consent is generally permitted because (as stated above), no tort of invasion of privacy exists in Australia. As Justice Dowd stated in R v Sotheren (2001) NSWSC 204, “A person, in our society, does not have a right not to be photographed.” This is why street surveillance photography is permitted and can be used as evidence in criminal trials.

Photography on private property

When a person gains access to private property, they do so with the understanding that they consent to any requirements the property’s owner may impose. A person is only permitted to take photographs on private property where the property’s owner has given permission to do so. Examples of private property include, “homes, shops, sport and performance venues, museums and galleries, schools and similar places.” If a person does not have permission to be on the private property, they are liable in trespass. The property owner may be able to get an injunction to stop the person from using the photographs they took while trespassing. This is the case even where the area is freely accessible to the public.

Photography from a public space onto private property

No law is being broken when a photograph is being taken of people on private property from public land. Since the 1937 High Court decision in Victoria Park Racing v Taylor 25 CLR 279, it has been well established that “there is no freedom from view.” This means that people who are photographed on their own property from public land have no legal claim. It is important to note that a person will face criminal charges for engaging in voyeurism and filming a person engaged in a private act.

Taking a photograph and using it for commercial purposes

Consent is required for the commercial use of a photograph of a person (in a public or private space). For example, a person is permitted to take photographs of the Melbourne Cricket Ground (MCG), but they cannot use the photo for advertising purposes without the permission of the MCG. This is referred to as “commercial use” and requires consent.

Australia’s comparison to other countries

The privacy laws in China, Italy, Israel, Slovenia, South Africa and Sweden are all remarkably similar to the privacy laws in Australia. Consent is required for the commercial use of a photograph but is generally not required to take a picture of a person in a public space. The countries with the most notable differences to Australia are Brazil and France. In Brazil, just taking someone’s photo without their permission (in a private or public space) gives them “a right to compensation for moral damage.” In France, it can be considered an invasion of privacy and gives a person a right to claim for “cessation of the wrongful conduct.”

Plans for future reform

Several reform options were discussed in the Standing Committee of Attorneys General discussion paper in this area. These include:

  • “possible criminal offences regarding unauthorised use of photographs of children;
  • possible civil remedies regarding unauthorised publication of images of people;
  • ‘take down’ provisions for online content; and
  • education campaigns.”

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