I have compiled this information sheet which aims to provide you with the answers to these and other questions that may arise when you are taking photographs in and of public spaces. It also aims to provide those you encounter with a statement of your rights to minimise the possibility of harassment or threatened legal action. For those who take their photography seriously, this may be beneficial to carry on you so that you are prepared.
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. In short, 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.
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.
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).
Photography of landmarks, buildings, monuments
There are provisions in the Copyright Act 1968 (Cth) that allow people to take and publish photographs of buildings, models of buildings, sculptures and other works of artistic craftsmanship without infringing copyright.
Government property
It is illegal to enter certain property belonging to the government such as railway yards, electrical power stations and military bases. Trespassing in these areas may lead to arrest and prosecution. For example, under the Defence (Special Undertakings) Act 1952 it is an offence to gain unlawful entry into a “prohibited area” (including flying over it), punishable by imprisonment. The Minister can declare any area of land or water “prohibited” if it is necessary for Commonwealth defence. The same applies for taking a photograph of the area or anything in it. Merely possessing a camera while in a “prohibited area” can also result in imprisonment.
It is also illegal to photograph any defence installation in Australia under the Defence Act 1903 (Cth). Your photos, camera and film can be confiscated and destroyed, and you can face potential fines or imprisonment. You can even be arrested without a warrant. Always obey any warning signs displayed at such locations as you can be penalised even if you haven’t taken any photos, but have photography equipment in your possession.
If you are in doubt about a particular location, always check.
Photographing number plates
A number of photographers have asked Arts Law whether it is illegal to photograph car number plates on the street. While State and Commonwealth legislation permits police and roads authorities to use various Automatic Number Plate Recognition systems (like Safe-T-Cam) to monitor criminal activity such as speeding, the law does not prevent photography of car number plates.
You and the Police
Some photographers have been approached by the police while on the street taking photographs. The police may ask you to identify yourself. Generally, you do not have to comply, but there are some exceptions:
- where you are in lawful custody, or the police suspect on reasonable grounds that you may assist in the investigation of an indictable offence (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)); or
- where you are at the Sydney Olympic Park and are suspected on reasonable grounds of an offence against the Sydney Olympic Park Regulation 2001 (NSW). In this case, failure to comply is an offence only if you are first warned that such failure is an offence.
Under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), the police do not have powers to stop, search and detain you without a warrant unless they suspect on reasonable grounds that:
- you have in your possession or under your control anything stolen or unlawfully obtained, or to be used in connection with the commission of a relevant offence; or
- you have in your possession or under your control in a public place a dangerous article that is being or was used in connection with the commission of a relevant offence.
For similar provisions in other states, see Police Powers and Responsibilities Act 2000 (Qld), Crimes (Custody and Investigations) Act 1988 (Vic) and Police Administration Act 2006 (NT). Do not forget the special powers that police and other authorised persons (such as rangers) may have in certain areas, as discussed above.
Obstruction and Public Order Offences
Setting up a tripod on a busy street and thereby impeding traffic is an example of an action that may amount to public obstruction. The Summary Offences Act 1988 (NSW) provides that it is an offence to prevent in any manner the free passage of a person, vehicle or vessel in a public place without reasonable excuse. Police have powers to arrest any person obstructing a public thoroughfare, although it is more likely that you would be asked to move on, and only arrested if you disobey. Police have powers to give a person in a public place reasonable directions if they believe on reasonable grounds that his or her behaviour or presence is obstructing another person or traffic, or constitutes harassment or intimidation of another person (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)). Failure to comply may be an offence punishable by a fine.
For similar provisions in other states, see Summary Offences Act 2005 (Qld), Summary Offences Act 2007 (NT), Summary Offences Act 1953 (SA), Summary Offences Act 1966 (Vic) and Criminal Code Act 1924 (Tas).
Private Land
In order to access a privately owned space you need permission from the landowner, and he or she has the right to impose restrictions on photography. Therefore, you may only be allowed to photograph certain objects or locations. This type or restriction is common in many museums, galleries and sporting grounds, and may occur on land owned by Councils. Even where the landowner allows you to photograph, keep in mind that he or she may not be the copyright owner in artistic works you might be photographing. In this case, you need the permission of the author of the artwork as well.
If you do not have permission to be on privately owned property, you will be liable in trespass. Trespass is committed with the slightest interference with the land (damage to the land is not relevant). The owner may take legal action in trespass against you for taking photographs after gaining unauthorised entry (Lincoln Hunt v Willesee (1986)) or may be able to get an injunction to stop you using whatever footage you gathered while trespassing (ABC v Lenah Game Meats (2001)). The landowner may use reasonable force to remove you from their land.
Use/publication of photographs
Now that you have taken your photographs you need to be aware that their use or publication may also be illegal when carried out in a certain fashion. For example, the subject of a photograph may seek an injunction to stop the publication of photographs that are indecent, offensive or demeaning (Lincoln Hunt Australia v Willesee (1986) 4 NSWLR 456).
Defamation
Defamation is the law that deals with injury to someone’s reputation. The unauthorised use of the photographs would need to lower the public’s estimation of the person portrayed, expose the person to hatred, contempt or ridicule, or cause him or her to be shunned or avoided. The unauthorised publication of the photograph in itself is not proof of defamation. Since defamation deals with reputation, the likelihood of an action in defamation will be higher the more famous the person photographed.
This information is intended as a guide only. It does not replace legal advice obtained from a legal practitioner. The information was correct at the time of writing but the author takes no responsibility for changes in the law since that time.
