Unauthorised photography on the internet
At the time of authoring this article, Katherine Giles was a Solicitor at Arts Law.
Katherine discusses the issues raised in the Standing Committee of Attorneys-General discussion paper, 'Unauthorised Photographs on the Internet and Ancillary Privacy Issues' ('Discussion Paper'):
The Discussion Paper focused on the use of unauthorised photographs on the internet and the subsequent public concern. For example, the Discussion Paper referred to the media attention given to unauthorised photographs taken of Melbourne schoolboys, whilst participating in sporting activities, which were discovered on a website linked to other adult sites.
Arts Law made a submission in response to the Discussion Paper and focused on how any proposed response to these issues might affect Australian artists. The general Arts Law position is that an individual's expectation of privacy should not extend to controlling images of themselves beyond the regulations and protections that currently exist in Australian law. Arts Law argued that existing laws cover most of the situations raised by the Discussion Paper; it is just that the medium (the internet) makes it difficult to monitor, or in many cases prosecute the offenders who are breaching these existing laws. Moreover, introducing laws that criminalise the use of unauthorised photographs of a person, or even just unauthorised photography of people and subsequent use on the internet will not alter this difficultly and will most likely result in some artistic causality along the way.
In Australia, there is no right not to be photographed. There is also no tort of invasion of privacy to generally protect an individual from having their photograph taken.[ii] Nonetheless, there are numerous restrictions such as the law of nuisance or harassment, obscenity, defamation, misleading and deceptive conduct and breach of confidence which may be used by individuals to prevent unauthorised use of their image in particular specific circumstances. These mechanisms combined with criminal law provisions in each State and Territory provides sufficient safeguards.
At present, if a photograph is sexually explicit then state based criminal restrictions may apply and the law currently provides regulations to protect children and the taking of and use of unauthorised photographs of children in an offensive manner. For example, in NSW the Summary Offences Act 1988 (NSW) deals with filming for an indecent purpose where someone is engaged in a private act or in circumstances where they would expect privacy and where the filming is for the purpose of sexual arousal, or sexual gratification. Further, the National Classification Code regulates the publication of offensive images of children whether they are authorised or not.
Outside Australia there has been some recognition of the interests of the person depicted in the photograph.[iii] In New Zealand the case of Hoskings v Simon Runting[iv] recognised that in some circumstances unauthorised photography could be an invasion of privacy. In Canada, in the case Aubry v Éditions Vice-Versa [v] an unauthorised candid picture taken of a teenage girl sitting on the steps eating her lunch, which was published in the Vice-Versa magazine, was held to be an invasion of privacy. And in France legislation has been passed to prohibit the publication of any photograph of a person without their consent.[vi] This recognition of privacy of or ownership of our own image has not been recognised in Australia.
Whilst there are clearly limits to the remedies available to someone whose photograph is taken without their consent in Australia, this must be weighed against the interests of Australian artists. Introducing new laws that prevent unauthorised photography of people in public would certainly curtail candid or street photography and the way we see the world we live in. The photographer Diane Arbus, stated that she really believed that there were things that nobody would see if she didn't photograph them.[vii] It is also important to remember that for many contemporary photographers the internet is their gallery and the only place their work is exposed to the wider public and those who are interested in it.
Creating a right for people not to have their photograph taken in public without their permission or a legal expectation of privacy in public places – or while engaging in public activities – drastically alters the current societal expectations as well as the current legal protections; it is as oxymoronic as it sounds. It would place undue restrictions upon artists who create art in public places or art that reflects these public places and those who inhabit them. As yet, there has been no response from the Standing Committee of Attorneys-General since the closing date for submissions in October 2005.
[ii] Victoria Park Racing and recreation Grounds Co Ltd v Taylor (1936) 58 CLR 479; ABC v Lenah Games Meats (2001) HCA 63.
[iii] For further discussion of these issues see Christina Michalos, The Law of Photography and Digital Images, London: Sweet & Maxwell, 2004.
[iv]  NZCA 34.
[v] (1998) 1 SRC 591.
[vi] Presumption of Innocence and Rights of Victims (2001).
[vii] StephenShore, “The Nature of Photographs”, Baltimore: John Hopkins University Press, 1998.