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Is it Legal to Take Pictures of Other People in Public?

Owning It

Updated: Dec 17, 2021




Many people believe that photographing people without their knowledge or consent is an invasion of privacy and therefore against the law. However, you might be surprised to learn, that, leaving aside the moral issues that this might raise, in Australia it is (on the face of it) perfectly legal.


This issue has become particularly important in light of an increasing trend in the use of images of “real people” by ad agencies and stock libraries. Of course, the rise of Facebook and Ray-Ban’s “smart glasses”. Also dubbed surveillance spectacles, the obvious threat is that wearers can easily record others without their knowledge.

The laws in Australia about taking photographs of people


There is no such thing as a distinct right of privacy in Australia (existing privacy legislation is primarily concerned with the privacy of information held by the public and private sector). To add to this, unauthorised photography of another person is not in itself prohibited.

There are however other legal restrictions that might prevent you from snapping someone else’s image freely and using it without their permission.

It all comes down to facts: who you snap, where you snap, under what conditions you snap and whether the individual has a well known reputation or not.


Defamation


The law of defamation might apply if the unauthorised use of the image of the person taken would lower the public’s estimation of that person, expose the person to hatred, contempt or ridicule, or cause the person to be shunned or avoided.


For example, a well-known Australian rugby league player once mounted a successful defamation case against a magazine publisher when it published a photograph of him which was revealing without his permission. The court found that the photograph led him to be ridiculed because it showed his genitals to readers of a magazine with a widespread readership.


Thus, the court took the view that the publication of his image was defamatory.


Capturing the rich and famous


Australian law gives special protection to celebrities with a reputation, particularly if a person is well-known by the public as an endorser of products.


The theory here is that people who are famous should be entitled to licence fees for the use of their image. Celebrities are generally paid to endorse products or services.


The context in which the photo has been taken can be very important. Compare for example, taking a photo of Australian cricketer, Shane Warne, in his backyard drinking a beer that is later published in an article in a newspaper about Shane Warne to a situation in which a beer company uses a cropped version of that very same photo for an ad campaign for beer.

The first use may be perfectly acceptable if the photo was taken legally and Shane Warne agreed to the photo being taken.


The second example however, indicates that unauthorised commercial use is being made of Shane Warne’s image and reputation without compensation to him and is therefore prohibited.


Copyright and confidentiality


Copyright law plays a very limited role in preventing unauthorised use of a person’s image. This is because copyright law aims to protect the photograph itself as an artistic work, rather than the person whose photograph has been taken.


The person, who owns the copyright in a photograph, can for example, prevent the unauthorised use and reproduction of it, but the person who has been photographed may not have any legal recourse in their own right (unless the photograph was taken pursuant to some agreement stating otherwise or under confidential circumstances or is defamatory).


What can you to get your photo taken off Facebook?


If the photograph of you was taken publicly, publishing it is not likely to be considered a breach of your privacy.


Once information is posted on Facebook or other social media websites, it is then available for anyone to see and it may not be possible to control how that information will be copied or distributed once it has been posted.


You might be able to complain to Facebook if the photo somehow breaches the Facebook policy.


Conclusion


The above discussion is a very brief and non-exhaustive introduction to the state of the law in this area which is actually quite complex.


As the legal position may change depending on the facts and context, it is highly recommended to seek specific legal advice for your circumstances.

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