Can You Photograph Someone Without Permission?
Whether there is a law against photographing someone without their permission, or publishing or circulating a photograph of someone without their permission are questions that lawyers are often asked. In the age of social media, it is increasingly common for someone to get photographed without their permission and for images of them to be published without their permission or without their knowledge. In the early days of photography, the same issue arose with unsolicited street photography being done by amateur or professional photographers. While some countries have legislated to protect people from unwanted photography and to give people the ability to control the use of their image, other countries, including Australia, have yet to make such laws.
Should we have a right to privacy?
Legal formulations of the right to privacy in other jurisdictions comparable to Australia, such as the US and UK, are based on the whether a person had a reasonable expectation of being accorded privacy in the circumstances. It is unusual for courts to rule that a person had a reasonable expectation of being accorded privacy in a public place like a street or on public transport. Several Australian law reform commissions and parliamentary inquiries have recommended that Australian laws recognise a right to privacy. Such a right would have to be limited and courts would need to determine in what situations and to what extent a photographed person has rights over their images. Any such right would also have to be balanced with the right to freedom of expression and with rights held under copyright law.
Privacy laws in the US
In the US, courts often consider the question of whether it was acceptable to photograph of someone without their permission. It has been ruled by courts that privacy was breached in the following circumstances:
- When someone photographed JK Rowling’s infant son in his pram in the street;
- When someone photographed Naomi Campbell outside a Narcotics Anonymous meeting.
Though privacy laws vary greatly in the US from state to state, in general photography of a person is not allowed in circumstances where they have a reasonable expectation of privacy. It is also generally not permitted to use another person’s name, image or persona without their consent in a way that causes harm or benefit. In some cases, victims’ rights have been upheld even where the offender does not obtain any benefit from the use of the other person’s image.
When is it illegal to photograph someone without their permission?
As Australian law currently stands, a person may be committing an offence if they photograph someone without the person’s permission or publish a photo of someone without permission in the following circumstances:
- Where the photos published are naked or sexually explicit photographs, and the publication harasses, intimidates or humiliates a person, this may amount to stalking or offensive use of the internet, which are criminal offences in all Australian jurisdictions;
- Where the publication is of intimate images without consent (commonly known as ‘revenge porn’). This has been made an offence in all states and territories in recent years;
- Where the image published is of a person accessing or leaving an abortion clinic. It is an offence to published such an image in some jurisdictions under ‘safe access zone’ laws.
When is it illegal to photograph someone (even with permission)?
In some circumstances, a person commits an offence if they photograph a person or publish a photo of a person even with the person’s permission. These situations include:
- Where the image published or distributed is a sexual or naked image of a person who is under the age of 18. This may amount to a child pornography offence;
- Where photos or videos are taken in areas where photography is prohibited such as inside a court;
- Where photos or videos are taken in areas where a person can reasonably expect privacy such as in a changing room.
In Australia, it is not currently an offence to photograph someone without permission or to distribute or publish photos of someone without their permission in other circumstances. There is currently no civil law remedy for being photographed without your permission or for having photographs of you distributed or published outside of the abovementioned situations. Furthermore, it is not against the law to photograph or video children in public places without their parents’ permission, provided the images are not obscene and do not breach criminal laws on child abuse material.
If you need legal advice or assistance please contact Armstrong Legal.