Introduction
What can you do to stop someone using your image in a photograph, film or video without your permission? With the introduction of new technologies such as digital video cameras and computerised enhancement, your image (or a distorted version of it) could appear on the internet and be accessed by millions of people, without your knowledge or permission.
In Australia there is no specific law aimed at preventing the unauthorised use of your image (unlike the United States (US) which has a law called the right of publicity).
The law in Australia
The areas of law in Australia which may be used to try and stop the unauthorised use of your image include:
1. defamation;
2. the Federal Trade Practices Act and State Fair Trading Acts; and
3. the law of passing off.
Copyright law is of little assistance in preventing unauthorised use of an image. This is because the person who owns the copyright in an image will generally be the person that created it rather than the person who appears in it.
Defamation
The publication of a person’s photograph without their consent is not in itself proof of defamation. The unauthorised use of the image would need to either lower the public’s estimation of the person, expose the person to hatred, contempt or ridicule, or cause the person to be shunned or avoided.
For example, Andrew Ettinghausen, a well-known rugby league player, mounted a successful defamation case against HQ Magazine when it published a photograph of him in the nude 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 widespread readership thereby lowering the public's estimation of him by implying he had authorised the taking and publication of the photograph.
See the Arts Law Centre of Australia's information sheet "Defamation" for more information.
The Trade Practices Act
Sections 52 and 53 of the Federal Trade Practices Act and the equivalent sections of the State Fair Trading Acts prohibit commercial conduct which misleads or deceives consumers. To prevent the unauthorised use of an image under this law it is necessary to show that the use of the image would mislead or deceive consumers.
The mere use of a person’s image is unlikely to be found to mislead or deceive under this area of law unless that person is a celebrity or well known endorser of products. If a person is well known by the public as an endorser of products then the unauthorised use of their image in connection with a product may constitute misleading and deceptive conduct. This is because the public would be lead to believe that the celebrity is endorsing the product.
For example, the Olympic swimmer, Kieran Perkins successfully sued Telstra for the unauthorised use of his image in an advertisement. The advertisement used a photograph of Perkins wearing a swimming cap bearing the Telstra logo, accompanied by a statement promoting its services in preference to those offered by Optus. The court held that the use of the photograph together with the statement inferred that Perkins preferred Telstra's service to that of Optus when in fact he had not made a statement about his preference. Perkins' status as a celebrity known by the public as an endorser of a variety of products assisted the court to find that Telstra's conduct was misleading and deceptive.
However, if the court finds that there is nothing in the unauthorised use of the image which misleads or deceives it will not find in favour of the person whose image is used.
Passing off
The law of passing off is similar to the law of misleading and deceptive conduct. It is designed to protect the reputation of a business from misrepresentation. To succeed in an action for passing off the complainant must have a reputation and there must be a misrepresentation by the defendant in relation to the business which causes damage or the likelihood of damage to the business. Because a reputation is required to successfully establish passing off, this law is of limited use for the "average person in the street".
For example, in the case of Henderson v Radio Corp Pty Ltd, a photograph of two well known professional ballroom dancers (the Hendersons) was used without their permission on the cover of a ballroom dancing record. The court found that in using the photograph the record company had denied the Hendersons the possibility of an opportunity to exploit their image for their own gain.
Privacy laws
There is no general right of privacy in Australia. Existing privacy legislation in Australia is of little or no use in the prevention of the unauthorised use of a person’s image. This is because current privacy legislation is primarily concerned with the privacy of information held by the public and private sector and the impact of business conduct on the privacy of individuals. For further information see the Arts Law information sheet “Privacy and the Private Sector.”
Invasion of privacy
Whilst there is no right to privacy in Australia, recent developments overseas and in the Australian courts leave open the possibility of a future tort of invasion of privacy in Australia. A tort is a private, civil wrong or injury for which the court may provide a remedy for any damage caused.
Unlike the US where there is an over-arching, all-embracing cause of action for invasion of privacy, the United Kingdom (UK) only has limited privacy protection. However, recent decisions, and the development of privacy law spurred by the enactment of the Human Rights Act 1988 (UK) have led to developments in the UK. For example, the House of Lords case in Campbell v Mirror Group Newspapers (MGN) considered the surreptitious photographs taken of model Naomi Campbell whilst she was leaving a narcotics anonymous meeting, which were then published in the Mirror newspaper. The House of Lords held that this was wrongful disclosure of private information as the details of Campbell’s treatment were of a private nature and that this imposed a duty of confidence on MGN. This decision was also made with reference to Article 8 of the European Convention on Human Rights. At present Australia does not have Human Rights Bill and as this is a decision of a court in another country the case would only be persuasive in the Australian courts. Further, the case did not recognise a tort of invasion of privacy.
In a country closer to home, New Zealand, the case of Hosking v Runting and others concerned photographs taken of the twin children of a well-known New Zealand television presenter whilst his wife was shopping. The parents tried to stop the images from being published. Whilst the court recognised that there is a tort of invasion of privacy they held that in this situation the pictures were not offensive and there was no reasonable expectation of privacy as the mother of the twins was only out shopping. The court also stated that public figures should have a lower reasonable expectation of privacy due to the public nature of their lives.
In Australia there have been two decisions which have raised the possibility of a tort of privacy. First, the case of ABC v Lenah Game Meats (2001) involved the secret filming of possum slaughtering at a meat processing plant. Whilst this case does not concern the unauthorised use of a person’s image, the decision is significant as it recognised that according to contemporary standards, certain kinds of activities are meant to be unobserved and any disclosure or observation would be highly offensive to a reasonable person. This case left open the potential for the development of a tort of privacy in Australia.
Secondly, in the case of Grosse v Purvis (2003) monetary damages were awarded for a breach of privacy. This case involved extreme circumstances in which Grosse was stalked, spied on and threatened physically and verbally by Purvis over a period of more than six years. The court held that Purvis committed many breaches of Grosse’s privacy. However, it is important to note that this case concerned long-term harassment of an offensive nature and the case was decided in a Queensland court, so whilst it may be persuasive in other states and territories it is not binding authority outside Queensland.
Consequently, whilst there are a number of developments in the area of privacy law and the tort of invasion of privacy overseas and in Australia, as yet there has been no introduction of a tort of invasion of privacy in Australia, which would prevent an artist, photographer or filmmaker from using your image in their work.
Industry bodies and their codes
There is no government body which regulates advertising standards in Australia. However, there are two main advertising industry bodies in Australia to which a complaint may be brought: the Advertising Federation of Australia (AFA) and the Australian Association of National Advertisers (AANA). In conjunction with the Advertising Standards Board, these bodies have codes of practice for their members and complaint procedures which may be useful in redressing any unauthorised use. For example, AFA's Code of Practice states that its members will "respect the essential dignity of all people" which may be contravened by the unauthorised use of a person's image. Unfortunately, these bodies can only exert influence on their members. For further information visit their websites www.afa.org.au and www.aana.com.au.