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Can You Photograph Someone Without Permission?

Written by Fernanda Dahlstrom

Fernanda Dahlstrom holds a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practiced law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practiced in family law after moving to Brisbane in 2016. Fernanda has strong interests in Indigenous and refugee law, human rights and law reform.

Whether it is legal to photograph someone without permission, or to publish or circulate a photograph of someone without permission, are questions that lawyers often get asked. In the age of social media, it is more common than ever to photograph someone without their permission and circulate images of them, images which may have been taken in public or even in private spaces. In the early days of photography, the same issue arose in the context of unsolicited street photography by amateur or professional photographers. While some countries have legislated to protect individuals from unwanted photography and to give people the ability to control the use of their own image, other countries, including Australia, have yet to do so.

Should we have a right to privacy?

Legal formulations of the right to privacy in comparable jurisdictions such as the US and UK are based on the question of whether a person had a reasonable expectation of privacy in the circumstances. It is unusual for courts to rule that a person had a reasonable expectation of privacy in a public place such as in a street or on public transport. Several Australian law reform commissions and parliamentary inquiries have recommended that Australia recognise a right to privacy. Such a right would have to be limited and courts would need to determine when and how a photographed person has rights in their images. Such a right would also have to be balanced with the right to freedom of expression and with copyright law.

Privacy laws in the US

US Courts often consider whether it was acceptable to photograph someone without permission. It has been ruled that privacy was breached in the following circumstances:

  • When JK Rowling’s infant son was photographed in his pram in the street;
  • When Naomi Campbell was photographed outside a Narcotics Anonymous meeting.

Though privacy laws vary greatly from state to state in the US, in general it is not permitted to photograph a person in circumstances where they have a reasonable expectation of privacy or to use another person’s name, image or persona is a way that causes harm without their consent and to benefit from that use. In some cases, victims’ rights have been upheld even where the offender does not obtain a benefit from the use of their image.

When is it illegal to photograph someone without permission?

As Australian law currently stands, you may be committing an offence if you photograph someone without their permission or publish a photo of someone without permission in the following circumstances:

  • Publication of naked or sexually explicit photographs, if their publication harasses, intimidates or humiliates a person, may amount to stalking or offensive use of the internet, which are offences in all jurisdictions;
  • Publication of intimate images without consent (commonly known as ‘revenge porn’) has been made an offence in all states and territories in recent years;
  • Publishing an image of a person accessing or leaving an abortion clinic is an offence in some jurisdictions under ‘safe access zone’ laws.

When is it illegal to photograph someone (even with permission)?

  • Publishing or distributing a sexual or naked image of a person who is under the age of 18 may amount to a child pornography offence;
  • Taking photographs or videos in areas where photography is prohibited such as inside a court is an offence;
  • Taking photographs or videos in areas where a person can reasonably expect privacy such as in a changing room or public toilet.

It is not currently an offence in Australia to photograph someone without permission or to distribute or publish photos of people without permission in other circumstances. There is currently no civil remedy for being photographed without your permission or for having such photographs distributed or published outside of the abovementioned situations. It is not against the law to photograph or video children in public places without the permission of their parents, provided the images are not obscene and do not breach criminal laws about child abuse material.

If you need legal advice or assistance please contact Go To Court Lawyers.    

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