NSW Privacy Breach - Photography of Individuals Without Consent?

[Toqual]

This topic and privacy is frequently discussed but what are the real facts?

Any legislation (i.e. Australian law or criminal law) addressing taking photos of people without consent? (Please also address the rumour of taking photos at beaches being illegal in your reply!)

Thank you.

 

[Sarah J]

This is generally governed by common law.

Generally, taking a photograph of someone in a public space does not require the consent of that person. This is because Australia does not yet recognise the tort of invasion of privacy (i.e. right to privacy): ABC v Lenah Game Meats (2001)

However, this tort may be established in the future. Further, taking photographs of someone in a private setting or having a photograph of someone that is clearly degrading, demeaning, indecent or offensive may give rise to an injunction prohibiting possession or publication of such photograph: Australia v. Willesee (1986) 4 NSWLR 456. This is an objective test. Saying that you feel it is embarrassing will not be enough for an injunction: Donnelly v Amalgamated TV Services (1998) NSWSC 509

There is also a difference between publishing photographs of a person in a public space (generally does not require consent) and commercially using a photograph of someone taken in the public space (requires consent).

 

[Toqual]

Much appreciated @Sarah J

 

[Sophea]

Hi Toqual,

Yes, there is definitely no law that says you can't take a picture of someone at the beach.

Firstly, it's perfectly legal to take photographs if you are in a public space. There is no personal right to privacy that would prevent you taking a person's photo as long as you are standing on public property. In fact it is even lawful to take a photo of someone while they are in their house or backyard or other private property as long as you are on public property.

Secondly, a person cannot claim copyright to their own image. As long as you were on public property when you took the photo you are allowed to publish it, and you will not infringe copyright, provided that (a) the purpose of the publication is not for commercial use and (b) the photograph is not indecent or offensive - as noted by Sarah.

 

[Tim W]

I agree with the above.

I would add that people photographing others on beaches have from time to time been charged with offensive conduct type offences.

In NSW, similar facts can lead to offences in the context offensive conduct of public transport.

In NSW, it can also be an offence to photograph certain parts of bodies in certain circumstances.
Which is my circumspect way of saying that "upskirting" is an offence.

 

[Toqual]

Thanks @Tim W @Sophea