Photographing in a Public Place

The following is taken from This PDF Document and was written by L. Barry Daniel.

Photographing in a Public Place.

The Summary Offences Act 1988 states: ‘public place’ means (a) a place (whether or not covered by water) or (b) a part of a premises, that is open to the public, or is used by the public, whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons, but does not include a school. This Act, Section 3. Definitions (1) indicates that ‘school’ includes a child minding centre or pre-school. It appears that many (if not all?) ‘public places’, where admission is charged for entry, are still officially deemed to be public places?

The general rule in Australia about photographing in a public place seems to be that, unless there is a legal prohibition such as a statute or ordinance or a legally authorised sign indicating photography is not allowed, you can photograph virtually anything you wish. Members of the public, street performers etc. are deemed to be ‘fair game’ and can be photographed without their consent – provided they are not in a place where there is a ‘reasonable expectation of privacy.’ It is also wise to be cautious of photographing anyone involved in an indecent act. Be mindful of what is proper and within the limits of decency. Taking pictures of a person in a public place would not normally be regarded as an invasion of privacy. In the UK photographers are not only free to take photographs of people in public places but they can use those photos as they wish, including for commercial gain.

Privacy

Unlike a number of other countries, Australia does not have a ‘Bill of Rights’. As a consequence, no one in our society has the right to be not photographed. (Reference - Justice Dowd in R v Sotheren (2001) NSWSC 204).

"25 A person, in our society, does not have a right not to be photographed. That is underlined by the fact that much of the evidence in this trial will be street surveillance photography taken from video cameras in and near railway stations and shopping centres."

It is perfectly legal to photograph a person (with or without their knowledge or permission) provided the image is not to be used for advertising - in which case a ‘model release’ is necessary.

The High Court decision in Victoria Park Racing v. Taylor (1937) 58 CLR 479 (at p.496) and reaffirmed in 2001 ABC v Lenah (2001) HCA 63 that any concept of a "Tort of invasion of privacy" still remains non-existent in this country. The taking and publication of such a photograph of a person in Australia, is not an invasion of privacy, nor is it in breach of any case or statute law. At present it is quite legal to do so.

Expectation of Privacy

“In the likes of schools, fitness gyms, change rooms, toilets etc. there is of course an ‘expectation of privacy’. On the street, eating an ice cream or performing juggling tricks eg. there is none. I can take your picture all day long and unless you specifically ask me to stop and then I continue following you around (which could be harassment and possibly assault) you have no recourse”. (Jay Giusti Chicago) Harassment To take ‘offensive pictures’ with say, a mobile phone camera (or no doubt the likes of a concealed ‘spy’ camera) can lead to a charge of Offensive Behaviour. P.J.Mac Kenzie was arrested and fined $500 for secretly photographing topless women on Coogee beach in November 2004. Offensive, Indecent or Demeaning Photos. A person who considers a photo falls into this category has the right to try to obtain an injunction to prevent its publication. . It appears that such a picture has to be clearly degrading otherwise a court is not likely to proceed with the request - Donnelly v Amalgamated TV Services (1998) NSWSC 509

Photography on Beaches and Swimming Pools

Waverly Council and Randwick Councils recently attempted to ban photography on their beaches and swimming pools. Public outcry and/or their discovery that they did not have the constitutional right to legislate any ban on such photography caused them to quickly rescind their actions.

Your Rights if confronted by Life Savers, Life Guards, Security Guards, or other officials

They do have the rights to keep you away from areas where you may impede their activities or endanger safety. They do not have the legal right to prohibit you from taking photographs from other locations. Without a court order they have no rights to confiscate your photographic equipment, film or digital media card. The taking of this equipment directly or indirectly by threatening to use force or call a law enforcement agency can constitute criminal offences such as theft and coercion. Generally, it is unlawful for anyone to instill a fear that they may injure you, damage your equipment or take your property, or falsely accuse you of a crime just because you were taking photographs If someone has threatened, intimidated, or detained you because you were taking photographs, they may be liable for crimes such as kidnapping, coercion, and theft. In such cases you should report them to police. You may have civil remedies against such persons and their employers. The torts for which you may be entitled to compensation include assault, conversing, false imprisonment and violation of your constitutional rights. If the party becomes ‘pushy’, combative, or unusually hostile consider calling the police Ask the following questions: (1) What is the person’s name?, (2) Who is their employer?, (3) If they insist you cease photographing and leave the area how do they propose to make you do this? (4) If they are unnecessarily delaying you, and you wish to leave immediately, ask them ‘are you free to leave the area’? – if not, what legal basis do they assert for the detention? (5) By law they do not have the right to be not photographed. Consider taking their photo for positive identification should you need to make charges against them. (Bert P. Krages 11, Attorney at Law Portland Oregon)

Photographing in a Public Place

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