Street Photographers Rights

Source: www.artslaw.com.au


Taking photographs in a public place
It is generally possible to take photographs in a public place without asking permission. This extends to taking photographs of buildings, sites and people. There are, however, some limitations.

Photographing people

There are no publicity or personality rights in Australia, and there is no right to privacy that protects a person’s image. Existing privacy laws are more concerned with storage and management of personal information and are of limited relevance to the present issue.

There is also currently no tort of invasion of privacy in Australia, but in ABC v Lenah Game Meats (2001) the High Court did not exclude the possibility that a tort of unjustified invasion of privacy may be established in the future. Based on this view, the Queensland District Court found in Grosse v Purvis (2003) that a tort of invasion of privacy had been made out on the facts and awarded the plaintiff damages. However, this case concerned a long history of harassment over many years and has limited application. As a result, taking photographs of people in public places is generally permitted.

Photographing people for a commercial purpose

If you are using your shots for a commercial purpose, such as for an advertising campaign, you should obtain a model release form signed by the subjects you are photographing to ensure you have authorisation to use their image to sell a product. See the Arts Law information sheet “Unauthorised Use of Your Image” for further information on defamation, passing off and trade practices law. A sample photographer’s model release form is also available on the Arts Law Centre of Australia website.

Photographing people on private property

There is no restriction on taking photographs of people on private property from public property. According to Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) there is no freedom from view, so people who are photographed on their property from a public location have no legal claim against you if what is captured in the photograph can be seen from the street. The same applies to photographs taken from private land when you have permission to take photographs. You should be careful that you are not being a nuisance and interfering with someone’s right to use and enjoy the land (see the case of Bathurst City Council v Saban (1985)).

Can taking photos be a criminal offence?

The Summary Offences Act 1988 (NSW) outlines a number of circumstances where a person’s privacy must be respected. For example, it is an offence punishable by a fine or imprisonment to photograph a person to provide sexual arousal or gratification if the person is undressed or engaged in a private act in circumstances where a reasonable person would reasonably expect to be afforded privacy, and he or she has not consented to being filmed. A private act includes using the toilet, bathing and engaging in sexual activities not ordinarily done in public. Similarly, the Surveillance Devices Act 1999 (Vic) and Surveillance Devices Act 1998 (WA) make it an offence to photograph a “private activity” without the consent of the subject.

The Crimes Act 1900 (NSW) also makes it an offence punishable with imprisonment to be in or near a building with intent to peep or pry upon another person. It is also an offence to stalk a person with the intention to cause fear of physical or mental harm. In serious cases, this may lead to an application for an apprehended violence order (AVO).

Also be aware that any photography construed as child pornography can result in criminal charges. For example, the Criminal Code 1899 (Qld) makes it an offence to take any “indecent” photograph of a child under the age of 16 without legitimate reason. You could face significant jail time, especially if the child is under 12. Similar provisions apply under the Criminal Code (NT), Criminal Code 1913 (WA), and the Criminal Law Consolidation Act 1935 (SA).

Full Text: http://www.artslaw.com.au/_documents/files/StreetPhotographersRights.pdf