Your right to take photographs

The following article by Andrew Nemeth BSc (Hons) LLB, is a detailed analysis of the legal issues surrounding street photography in NSW Australia. It addresses matters like "privacy", "rights", "consent", "offensive behaviour", and even the attempt by some local councils to ban "unauthorised photography" outright. The full document can be found here: [1]

Your right to take photographs

The taking and publication of a photograph of a person in NSW Australia, without their knowledge or permission, but within the limitations outlined below, is not an invasion of privacy, nor is it in breach of any case or statute law. It may be frowned upon by misguided Privacy Zealots, but in this country it has always been, and for the moment remains, a perfectly legal thing to do. A legacy of our convict past is that we've never had a Bill of Rights. Constitutionally speaking, there has never been any concept of a "Right To Privacy" here. Because of this, our common-law has always rejected attempts at prohibiting photography by merely claiming privacy rights (see this PLPR 1999 overview by Sharon Theedar, as well as this iLaw 2004 Net Law Roundup #35 by Jeremy Malcolm).

Indeed "unauthorized" photography has been sanctioned in Australia ever since the 1937 High Court decision in Victoria Park Racing v. Taylor (1937) 58 CLR 479 (at p.496). This was reaffirmed in ABC v Lenah (2001) HCA 63, where the Court ruled that despite the passage of decades since Victoria Park, any concept of a "Tort of invasion of privacy" still does not exist in this country. As Justice Dowd put it bluntly in R v Sotheren (2001) NSWSC 204 - “A person, in our society, does not have a right not to be photographed.”

You can't state it any clearer than that.

Limitations on photo rights

Just because "unauthorized" photography hasn't been prohibited, it doesn't necessarily follow that it's a free-for-all. Far from it! NSW's Defamation and Offensive-behaviour laws still apply, as do common-law doctrines of Nuisance or Trespass, or statutory prohibitions arising out of the Commonwealth Trade Practices Act (see this 2005 Press Council speech by Ken McKinnon, along with this Australian Arts Law Centre article).

Private Land

Whenever you enter private land, you do so with the understanding that you consent to any terms & conditions the property's owner may impose on you. So if they tell you to stop taking photographs, then there is nothing you can do. Stop it! Property owners can even use "reasonable force" to evict you if don't follow their (lawful) instructions. They can never threaten violence though (assault), or push you around and seize your camera or film (battery). Rent-a-cops, supermarket clerks, shopping centre managers and customers at a Haldon Street Cafe in Lakemba take careful note…

Common Law

Injunctions can be obtained to halt the publication of photographs if the images are indecent, offensive or otherwise demean the subjects in them (Lincoln Hunt Australia v. Willesee (1986) 4 NSWLR 456 at p.464). The depiction has to be clearly degrading though, merely saying you were "embarrassed" or "uncomfortable" will be laughed out of court - Donnelly v Amalgamated TV Services (1998) NSWSC 509. For Nuisance or Trespass, merely taking a photo of someone is always permitted. It only becomes an actionable Tort if you photograph the same person again & again over an extended period of time (Bathurst City Council v Saban (1985) 2 NSWLR 704 at pp.706-8). The occasional shot is okay, as is pointing your camera over their fence, or even following them down the street, but do it to the same person day after day and you're asking for trouble (not to mention a punch in the face).

BTW, the "no Tort of Invasion of Privacy" doctrine isn't fixed in stone. Already in ABC v Lenah there are hints the High Court may allow privacy-infringement claims in future (see also this 2003 article by David Lindsay). Indeed in Grosse v Purvis [2003] QDC 151, for the first time in Australian legal history the Tort was actually allowed! Mind you, the case is a weak precedent because it dealt with eight years of stalking & sexual harassment, and it's only a lower-court decision limited to Queensland. Moreover, it remains to be seen if the new doctrine would be affirmed by the High Court so soon after Lenah…

Consent for photographs always required?

Not in Australia. Aside from Trade Practices or Summary Offences issues (see immediately below), consent is not required, and instead is a purely moral and aesthetic issue. As pointed out in the Aug 2005 Federal Attorney General's Discussion Paper "Unauthorised Photographs on the Internet And Ancillary Privacy Issues", as quoted on the (anlysphere.com) website:

… for any society to function in a relatively free and open manner there could not realistically be a requirement for all photographs to be taken with consent. If there were such restrictions, candid shots could never be taken, and the media would be severely constrained in the images they show us. Freedom of expression and artistic expression would undoubtedly be adversely affected ... while there may be legitimate circumstances when recording images should be restricted, it would not be practical or desirable to obtain consent from every person all of the time, for example, for use in television news file footage.

Cth Trade Practices Act

Federal Trade Practice law is ruthlessly unambiguous: if you are silly enough to use a photo of someone without their permission (ie. without a signed release), in an advertisement or other commercial context, then you are guaranteed to become a defendant in a hefty statutory damages claim. There is no way to wriggle out of this, and many Record Company Executives have found out the hard way just how costly it can be to include shots of drunken fans on album covers or posters, without the subject's prior consent and signed release.

NSW or Commonwealth Privacy Act

At the time of writing, neither of these apply to the taking and display of photographs by individuals. Due to constitutional issues, both Acts apply solely to the activities of Government Departments and corporations. As pointed out by the NSW Privacy Commissioner in 2004: “Privacy laws, which deal with the handling of personal information, don't generally regulate the behaviour of individuals”.

There are also arguments that even if the legislation was extended to include individuals, "candid photographs" would still fall outside the Acts' scope because the law remains restricted to matters concerning personal computer records stored in databases (see the 2004 overview by specialist privacy lawyers AAR).

Despite this, Privacy Commissioners often try to insert general photography into the Act's scope. On the Federal Privacy Commissioner's website, you'll find a bland statement that photography is covered by the act. Unfortunately they fail to specify what kind of photography (editorial, candid, personnel records?). Similarly, in 2000 there was an attempt in Hong Kong to broaden Privacy Legislation to include photographs. It failed. In 2005 the Commonwealth Senate Legal & Constitutional References Committee conducted a thorough review of the Commonwealth Privacy Act 1988. In June 2005 they published their report. Despite rumours of acting to constrain photography due to fears raised by camera-enabled mobile phones, the 186 page report barely mentions photography at all - and even then only in a medical record or biometric security scanning context.

Meanwhile, state attorneys-general & privacy commissioners regularly circulate papers calling for restrictions on all "unauthorized" photography. Luckily things haven't gone that far - yet. Finally, what about Press or Privacy Council guidelines? Easy - they don't apply to non-council members or individuals. At any rate, they are recommendations only, not enforceable rights arising out of Law.

NSW Summary Offences Act

If the photographs are taken (without consent) "to provide sexual arousal or gratification", the photographer may face criminal charges under Section 21G of the NSW Summary Offences Act 1988. The Act is clearly aimed at creeps & perves, and it is limited to photographs taken in places where the subjects have a "reasonable expectation of privacy" (such as public toilets, showers, changing rooms, nude sun-baking in the backyard etc.). So it doesn't really apply to candid photography as such. Still, it codifies the minimum of what's acceptable in a public photography context.

Offensive Behaviour

This was a Hot Topic at the beginning of 2005. It all arose from the arrest, guilty plea and $AUD 500 fine imposed upon Peter James MacKenzie, for secretly photographing topless women with his mobile-phone camera on Coogee beach, in November 2004. In the following months, there was a lot of concern and commentary over this. Most agreed PJ actions were offensive, but did it also have broader implications in effectively banning all candid photography on Sydney's Beaches?… Luckily things never went that far. Wiser and cooler heads prevailed. When in February 2005 a couple of university students - Gaur & Singh - were similarly charged for (again) taking mobile phone photographs of girls at Coogee beach, Police prosecutors this time withdrew all charges on April 5th, and Magistrate Lee Gilmour formally dismissed the case. One of the consequences here was that it put photographers on notice to Do The Right Thing.

In this country there is a great deal of freedom in what you can photograph. But do a PJ and creep the length of a beach, taking surreptitious close-ups of people's crotches or breasts, then better ready yourself for an "Alright Officer, I'll come quietly".

Council Bans on photography

Waverly Council. Thanks to PJ, in late 2004 Waverly local council tried to ban all "unauthorised" photography on all of its beaches (Bondi, Coogee etc.). As you can imagine this caused an uproar, with many reminding the Council that, er, they didn't actually have the right to prohibit photography in public places. Only the NSW State Government has the constitutional power to do this (and politically it's unlikely they ever will).

A couple of weeks later, the Council reluctantly agreed. On January 16th 2005, Deputy Mayor George Newhouse admitted during a 6pm Channel 7 Sydney TV news report that, yes, it was actually impossible to ban photography on Waverley Council beaches. Nevertheless, the council were going to try to restrict photography anyway by giving Surf Lifesavers the right to ask certain "unauthorised" photographers to leave the beach. No problems with that, but it turned out to be a moot point anyway, as the council failed to pass the anti-photography motion in early February 2005.

NSW P&C Association On February 21st 2005, Ms Sharryn Brownlee, president of the Federation of Parents and Citizens' Associations of New South Wales, recommended parents should be required to obtain permission whenever they wish to photograph their own children at school swimming carnivals, plays, concerts or sport days. Shades of Maude Flanders & instant public backlash. By lunchtime Ms Brownlee backed down, claimed she was "misquoted", pulled her head in and went away.

Randwick Council A day after Sharryn's Retreat, Randwick local council stepped up to bat. Taking their cue from Waverly Council, along with learning from their mistakes, the Council passed a motion banning parents from taking photographs of their own children at council owned swimming pools. If parents wanted pictures, they would have to buy them at $5 a print, from council or school accredited photographers. Public Uproar III. Mayor Murray Matson proudly stands his ground. His colleagues didn't. A few days later support for the measure was withdrawn, a new meeting was held, and the policy was officially suspended pending a report by Council Officers. No prizes for guessing it eventually didn't recommend the policy be re-adopted. You have to hand it to Randwick. Unlike Waverley they were smart enough to limit the prohibition to council property only, and not general public land. This would have made court challenge very difficult, as property owners have broad rights to control whatever happens on their land (as do shopping centres, supermarkets etc.). That's very clever. Not coincidentally, it was also a handy way to turn a buck ($5 a pic times hundreds of children = a nice little earner).

Other Restrictions

What about NSW recording devices or work-place video legislation? Neither apply as the former is limited to sound recordings & telephone taps, whilst the latter is only concerned with the misuse of video surveillance cameras in places of employment. What about some vague notion of "performer's rights"? In this case we have a copyright issue, dealing with how an artwork is displayed or altered by subsequent owners, which again is completely irrelevant here.

Keep in mind court orders prohibiting photography and/or the publication of images can also be obtained in child custody & protection matters or witness protection. We have personally encountered this issue while taking photographs of a spectator crowd at a football match in 2003. After a few shots, a woman started screaming and ran 50m down the stairs towards me, demanding to know who we were, why we were taking photos etc. Turns out a seven year-old in her company was subject to a child protection order, and photographs of him were prohibited by court order. (No problem, we made a note and used a different image!)

Your right to take photographs

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