We live in a digital age in which people are constantly taking pictures and selfies in public spaces and uploading them to social media but it is actually illegal to take photos or film someone without permission in Australia?
While some countries have legislated to protect individuals from unwanted photography, there is no general right to privacy in Australia.
This means there is no law which prevents an image of you being used without your permission.
Photographers or snap-happy folk can legally photograph people in any public place such as a street, park or beach or property they own or rent so long as they are not breaking any other laws like trespassing.
Taking a photo for commercial purposes is a different thing – as it is if you’ve purchased a ticket to a concert have to abide by their terms – however legally, nobody can claim copyright to their own image.
“So long as you are on public property you can publish the photo,” says Stacks law firm. “But if you publish a photo taken by someone else you run into copyright issues. Get permission to use it.”
However, lawyer Geoff Baldwin says if someone has a voyeuristic purpose, which can generally be thought of as capturing images of private activities for your own or someone else’s sexual gratification, it is likely to be an offence under the Crimes Act 1900 [NSW].
The distribution of ‘intimate images’ – like revenge porn – can also be an offence under the same Act.
Under Australian law, it is also an offence in some jurisdictions under ‘safe access zone’ laws to publish an image of a persona accessing or leaving an abortion clinic.
Even with permission, publishing or distributing a sexual or naked image of a person who is under the age of 18 may amount to a child pornography offence.
Unlike Australia, in the US and the UK, courts trend to look at whether a person had a reasonable expectation of privacy in the circumstances.
“It is unusual for courts to rule that a person had a reasonable expectation of privacy in a public place such as in a street or on public transport,” says Fernanda Dahlstrom, who holds a Bachelor of Laws, a Bachelor of Arts and a Master of Arts.
Dahlstrom says US Courts often consider whether it was acceptable to photograph someone without permission.
In the past, it has been ruled that privacy was breached when Harry Potter author JK Rowling’s baby son was photographed in his pram in the street and supermodel Naomi Campbell was photographed outside a Narcotics Anonymous meeting.
In Australia, it is not against the law to photograph or video children in public places without the permission of their parents, provided the images are not obscene and do not breach criminal laws about child abuse material.
The popularity of drones and mass social media distribution means this is a cloudy area, and the law is still catching up.
“The problems stem not only from the manner in which Facebook and similar platforms allow mass distribution of images by persons who are more or less undetectable,” says Baldwin. “An additional factor is the hugely increased capacity of mobile phones to capture videos of some length.”
While Australian law reform commissions and parliamentary inquiries have recommended that Australia recognise a right to privacy, photo use can be a contentious issue so experts recommend seeking legal advice if in doubt.
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