A question that the media law team at Cove Legal is often asked: does having your photo taken, without your permission, constitute a breach of privacy?
Unlike the US, UK, New Zealand and Canada, Australia is yet to recognise a person’s legal right to privacy and therefore having your photo taken in public is not automatically contrary to any law, but as with everything in law it can still depend on the circumstances.
Australian law treats the taking of photos or videos in public and private places differently. Generally, in a public place, it is legal for anyone to take a photo or video of you without your permission, no matter how you might feel about it. Even having your photo taken by your neighbour while you do your gardening is not considered a breach of your privacy, provided they don’t step onto your property or harass you.
But not all public places are completely ‘public’. You may have noticed that venues frequented by children often enforce policies banning the taking of photographs and film on their premises, such as public swimming pools. Other places with frequent no-camera policies include shopping centres, rock concerts, museums and court rooms. Despite these places providing access to the public, the owners can still enforce their legal right to prevent people from using cameras whilst on their premises.
Legal action can be pursued if your photo is taken whilst you are engaged in an activity that an ordinary person would expect to be private. In 2008, a woman in Victoria sued her ex-partner for showing videotapes of them having sex (in private) to her family, friends and employer (Giller v Procopets). The court awarded damages to the woman for the distress it caused. Such actions are often run based upon a breach of confidence – not a breach of privacy.
New laws have also recently been introduced in Western Australia that criminalises the distribution of intimate images without the other person’s consent. These are new areas for the Police and the Courts to address, but with the recording and re-publication capabilities presented by even the average modern smartphone they are merely playing catch-up in a far more challenging online environment when it comes to addressing personal privacy rights.
Cove Legal offers specialist expertise in the area of media law, with a focus on protecting personal and corporate brands/reputations. Roger Blow is a leading defamation lawyer in Western Australia and can be found listed as a social media law expert on expertguide.com. He regularly provides commentary concerning media law issues to television, radio stations and newspapers such as Channel 7, Channel 10, The West Australian, the Age, the AFR and SMH.
Roger Blow, Principal, Ph: +61 8 6381 0327 or roger@covelegal.com.au
This publication is not intended to provide and does not provide legal advice. You should seek professional legal advice relating to your specific situation(s) before taking any action based upon its contents.