4020 Φ NSW Photographer's Rights HOME May 8, 2016 NSW Photo Rights Australian street photography legal issues by Andrew Nemeth BSc (Hons) LLB MTeach Introduction The following by is an analysis of legal issues which apply to street photography in NSW Australia. Created in response to objections to my Sydney Unposed project, it is written from a photographer's perspective, with a focus on what rights shooters have (and don't have) when it comes to candid photographs of people. Please note: it is not an encyclopaedia on every possible aspect of photographic law, so it does not attempt to address issues like anti-terrorist legislation, council photography permits or National Park commercial photo restrictions. Instead the sole purpose of the following is to discuss legal issues which apply to people photography only. In case you are wondering, I am a photographer and qualified solicitor (UNSW 1991) who worked for a short while at a large Sydney law firm, before leaving the profession in 1992 to find a more honest way to make a living. So the following is based on an (ex) practitioner's understanding of Intellectual Property and Privacy Law, and not just the usual Internet Hearsay. =) BTW when citing this article, please use http://photorights.4020.net. 2023 Recent Updates: 24 Nov — Inclosed Lands Protection Act 1901 references updated Your right to take photographs In Australia the taking and publication of a person's photograph, without their consent or knowledge but within the limitations outlined below, is not an invasion of privacy, nor is it in contravention of case or statute law. Privacy advocates may disapprove, but in this country people-photography has always been, and for the moment remains, a perfectly legal thing to do. 1. High Courts "approve" In Australia most forms of "unauthorised" photography have in fact been authorised since the 1937 High Court decision in Victoria Park Racing v. Taylor (1937) 58 CLR 479 (at p.496). This was reaffirmed recently in ABC v Lenah (2001) HCA 63, where the Court ruled that despite the passage of decades since Victoria Park, any concept of a Tort of invasion of privacy still does not exist in Australia. As Justice Dowd put it with ruthless clarity in R v Sotheren (2001) NSWSC 204: A person, in our society, does not have a right not to be photographed. 2. Photography is not (yet) a Crime Many photographers are fed-up with being treated like perverts. In the last few years things have deteriorated to such an extent that JPG Magazine devoted an entire issue to it in February 2006: […] amateur photographers are the documentarians of real life. People with cameras bear witness to the everyday dramas of ordinary people. We capture our world to help us understand it. We are not terrorists. We are not dangerous. And we are certainly not a threat. Likewise the Aug 2012 New York Times blog Can You Take a Photography Anywhere . Or the lengthy article by John Reid and subsequent blog discussion, Talking Pictures: Photography Is Not A Crime, on the Sydney Morning Herald website (Feb 2007). Ditto the 2010 Sydney Photo Rights Rally plus UK websites I'm a Photographer, not a Terrorist and Not-A-Crime. Similar sentiments have even led to the making of a documentary movie called Off Limits (La rue zone interdite) (2005). Featuring interviews with Marc Riboud, William Klein, Willy Ronis, Janine Niepce and Elliott Erwitt, it was directed by Gilbert Duclos — the Quebecian street photographer who lost a 1998 Supreme Court case concerning his photo of an art student sitting on a bank's steps (see the Canadian discussion below). 3. No Federal Bill of Rights A legacy of our convict past is that Australia has never had a Bill of Rights. Consequently there has never been any concept of a constitutionally protected Right To Privacy. Because of this, our common law has always rejected attempts to prohibit photography by merely claiming privacy rights — see this Photos and surveillance FAQ by the Australian Government Office of the Australian Information Commissioner (OAIC). Interestingly, Australia is a signatory to the International Covenant on Civil and Political Rights (ICCRR), which means the Federal Government could in theory establish a statutory Bill of Rights by implementing the treaty via the External Affairs Power in the Constitution. That it has not been done is mainly due to politics, history and indifferent public opinion. Despite this, on the 60th anniversary of the Universal Declaration of Human Rights in December 2008, the Federal Government announced the creation of a 4-member consultation panel to look into the creation of a Bill of Rights charter for Australia. Maybe. One day. Implied Rights to Freedom of Speech Analyse the constitution as fastidiously as you like, but you will not find anything on personal rights. Yet thanks to 1990's judicial legerdemain, the High Court discovered that, amazingly, media proprietors citizens do have a few implied Rights to Freedom of Speech — see this research note by Roy Jordan (2002). So does this mean photographers can now use Freedom of Speech to counter restrictions on photography? Unfortunately, no. In typical High Court fashion, our "rights" have been carefully limited to only matters regarding political discourse (eg. the Sydney anti-pope protests in July 2008). To quote Roy Jordan: […] there are implied rights to free speech and communication on matters concerning politics and government, e.g. permitting political advertising during election campaigns. This is known as the 'implied freedom of political communication'. That's it. Which means for general (ie. non political) photography, Freedom of Speech does not exist in Australian federal law. Victoria Charter of Human Rights and Responsibilities This act was passed in 2006 and became fully operational in January 2008. For the first time in an Australian State, it implemented most of the elements found in a typical Bill of Rights, including Freedom of movement, expression, assembly and association, Right to liberty and security and — most importantly for photographers — Protection of privacy and reputation. It is still too early to see what impact it will have on candid photography, but it is not unreasonable to expect someone will eventually use it to wage anti-photo lawfare. A couple of important caveats: (1) the VCoHRaR is jurisdictionally limited to Victoria and does not apply to the Commonwealth or any other state; (2) the Australian Capital Territory has had its own Human Rights Act since 2004, yet in all this time it has still not been used to ban photography. Limitations on photo rights Just because "unauthorised" photography has not been generally prohibited, it does not mean it is a free-for-all. In NSW Anti-Voyeurism, Defamation and Obscenity laws still apply, as do common law doctrines of Nuisance, Trespass, or statutory prohibitions arising out of the Commonwealth Trade Practices Act. The remainder of this article presents an analysis of these photo restrictions and limitations. For a similarly detailed overview in an Australian context, you may also wish to refer to Caslon Analytics note on Unauthorised Photographs, along with this Australian Arts Law Centre Unauthorised use of your image article. Anti-Voyeurism Laws The situation in NSW used to be that if photos were taken of people without their consent to provide sexual arousal or gratification, then photographers risked being charged with Offensive Behaviour under Section 21G NSW Summary Offences Act 1988. Section 21G was however repealed at the end of 2008. From 2009 onwards, "Peeping Tom" photography in NSW is now addressed by Division 15B of the NSW Crimes Act 1900, specifically the Voyeurism and related offences provisions in sections 91I, 91J, 91K, 91L and 91M. Note that Division 15B does not generally apply to everyday candid photography. This is because its scope is carefully limited to (a) photographs of a sexual and voyeuristic nature, usually of a person's private parts; (b) taken without consent and (c) taken in places where a reasonable person would reasonably expect to be afforded privacy (such as toilets, showers, changing rooms, enclosed backyards etc.). The use of the word "reasonable" is crucial because it means the test for the expectation has to be rational and objective. It has nothing to do with the photographed person's feelings, thoughts, sensibilities, religious convictions or paranoia. So if a subject is parading around naked in clear public view, then they can hardly claim their privacy was violated if someone took their picture. (See also beach photography bans discussed below…) BTW if the photographs are indecent enough, then even if they were taken with consent then they still may run afoul of the National Classification Scheme, should they be published online or in a magazine. "Uρskirting" or "Dοwnblοusing" Taking general photographs without consent is one thing, but zooming in to snap a person's private parts is specifically prohibited under Section 91L. Furthermore, in the case of private parts, the new test is not limited to a reasonable expectation of privacy, but rather circumstances in which a reasonable person would reasonably expect the person's private parts could not be filmed. This is a significant difference, for it obliterates the no privacy in public places defence. According to s.91L, the mere act of taking sexualised close-ups of a person's private parts without their consent is sufficient. It is irrelevant where the shots were actually taken: either through a person's bathroom window or in the middle of a crowd at a sporting event, both cases are now equally in breach of the NSW Crimes Act. Heck, even attempting to take such photos is in breach of s.91L(6)! Photo-peepers and other telephoto creeps should therefore consider themselves warned. (FWIW see also the Wiki article on Uρskirting.) National anti-voyeurism legislation? In Queensland, thanks to the child-photo antics of Paul Michael Bartram (in particular his 2005 Children Swimming website ), amendments to the QLD Criminal Code 1899 were introduced in November 2005, leading to s.227A Observations or recordings in breach of privacy and s.227B Distributing prohibited visual recordings, with s.227A(2) specifically targeting voyeurism and "uρskirting". To allay fears of inadvertently criminalising candid photography, Queensland's 227A(2) is specifically limited to … the observation or visual recording made for the purpose of observing or visually recording the other person's genital or anal region (emphasis added). Like NSW this exempts everyday shots of people in crowds or bars or at the beach. The July 2006 SCAG meeting noted their intention of adopting the Queensland model for nation-wide anti-voyeurism laws. NSW did it at the end of 2008, presumably remaining states will follow ASAP. Private Land Every time you enter private land, you do so with the common law understanding that you consent to any requirements the property's owner may impose upon you. Should a property's owner (or their agent) tell you to cease taking photographs, for whatever reason, then there is nothing you can do about it. Even if the area is freely accessible to the public, a property's owner has full power of veto over what happens on their land. Reattach that lens-cap and put thy camera away. As noted by Professor George Williams in Picture this: city puts photo ban in the frame: The law would say that once you own land you get to control what goes on there. The basic problem is that so much of our space these days is out of public hands and in control of private enterprise. […] [T]he law recognises few public rights on private property. It is a very large debate around the world. It has become a big issue in the US where shopping centres can ban people wearing T-shirts with political slogans, and the courts have sought to define quasi-public spaces. Hence the difficulty in taking photographs inside department stores; bars; night-clubs; sports arena; shopping centres; "Kmarts" or supermarkets. They may be areas freely open to the public and justifiably regarded as the village square or commons of our time, but they are all private land and thus come under the control and regulation of their owners. Which means they can prohibit almost anything they like (including photography) on their land and there is nothing you can do about it. Their turf, their rules. For non-political discourse, No Bill of Rights in Australia = no Freedom of Expression. Supermarkets have always balked at unauthorised photos. Even back in the 1980s I was once escorted from a South Hurstville store for taking shots of an empty aisle… Once you leave the property however, there is no restriction on taking photographs from outside. This was the finding in the 1937 Victoria Park case, and it is still law. Thus for example the July 2006 photography ban at Melbourne's Southgate Precinct was carefully limited to pictures taken inside the centre. Even management admitted they were powerless to stop people from photographing things outside. What if you take photos of a private space, publish them, and are then contacted (threatened?) by the property owner, claiming you have no right to display or sell images of their land? Frankly, ignore them. They may be able to restrict you while the photos are being taken, but they cannot do anything once the images have been captured (unless of course the photos are defamatory or infringe trademarks, trade secrets etc). As noted earlier there is no general right to privacy here, especially for publicly accessible areas. Furthermore in Australia there is no concept of ownership over the appearance of architectural spaces (see the copyright discussion below). Inclosed Lands Protection There is a special exemption for publicly owned spaces such as nursing homes, schools, public libraries, childcare facilities, nursing homes or hospitals. These are deemed by the NSW Inclosed Lands Protection Act 1901 to be “prescribed premises” and have the same control rights as private land. So don't imagine you can question someone's authority to prevent you from taking photos at (say) hospital parks or Government House. It might be government owned land, but the ILPA means authorised persons can regulate your behaviour while on public property. Weekend Markets — caution Occasionally photographers contact me because they have been prevented from taking photos at either Melbourne's Queen Victoria Market or Sydney's Paddys Markets. Are market proprietors allowed do this? In a nutshell — yes. Although stall-holders do not have property rights over the space they occupy, the people who run and operate the markets — do. These markets (and others like them) are on private land, and consequently their owners can prohibit almost anything they like. Furthermore, it is common knowledge that many stall-holders deal in stolen or counterfeit goods, so reticence in allowing lens-hounds to document this should be unsurprising. The Sydney Paddys Market is a notoriously photo-unfriendly place. After I took this picture I was greeted with furious hand-waving and shouts of "No Photo! No Photo!"… But malls, markets etc. are public space! No they are not. Just because an area is publicly accessible, it does not also mean it is “public land”. What confuses some Australians are United States cases where people have won the right to hand out leaflets in malls: see <freedomforum.org/packages/first/freeexpression/index.htm> Because we lack any Bill of Rights protection in Australia, aside from the ACT or Victoria, these precedents do not apply. Furthermore leaflets are one thing, photography something else. Despite constitutionally protected Freedom of Expression rights in the USA, their shopping centres are still photo-averse places — see for example this Feb 2004 online discussion. Even a street redevelopment by The Petersen Companies in Silver Spring has tried to ban photography, much to the disgust of US photographers. As noted earlier Australia is a signatory to the ICCRR, Article 19 of which protects everyone's right to freedom of expression. Unfortunately the treaty has not been incorporated into Australian law, so it is of academic interest only. What about NSW railway stations? This is a different story for they are a public space (even if they are not, technically speaking, “prescribed premises” or “public land”). So provided you don't make a nuisance of yourself, you should be fine. In 2004 the NSW Minister for Transport Services spelled it out (at NSW Legislative Council Hansard, 24 Feb 2004, p.6394, art.53): It is not an offence to take a photograph on a train or at a station. Transit officers are required to detect graffiti and other offences as they occur, as well as protecting State Rail property from vandalism. I am advised taking photographs of graffiti may indicate a connection between the person and the graffiti they are photographing, as graffiti offenders often photograph their work. See also the earlier Q&A in NSW Legislative Council Hansard, 12 Nov 2003, p.4731, art.22. Nevertheless in 2012 the NSW Government implemented a policy formalising the requirement of permission for most photography done at Sydney and regional railway stations — see the Filming and Photography | Transport for NSW website. There are two broad categories of photographer: Hobbyists and Other film-makers and photographers, including students. The former have free access to taking photographs, provided they contact the station first. The latter: [...] are required to submit an application for assessment. Applicants will require public liability insurance for the sum of $20 million. Students requests will also need to provide a letter from their institution, stating the filming forms part of their studies. Applications for use of stations and trains require 10 business days to process Applications for exclusive use of a train require a minimum of eight weeks to process. Applications will firstly be reviewed by the Special Events Unit. If your application is declined at this stage, no fees apply. The fees range from $550 (even if you apply to have the fees waived) to > $1650 (if you include the $110 hourly fees for site inspection and supervision). Realistically, if you are a hobbyist and are going to linger and take photographs using a tripod, then contact the Station Master first. For casual hand-held photography however — don't ask, shoot. OTOH professional photographers or students should think seriously about taking their cameras elsewhere. Victoria? Apparently NSW has adopted the restrictive approach taken by Metro Trains in Melbourne. Due to safety and security concerns, photography is expressly prohibited at Metro metropolitan railway stations. The stations, platforms and rails might still belong to the Crown, but unlike NSW they are controlled and are under the authority of a private company. You can however apply for photography permits if you are a rail enthusiast or amateur photographer — see the Metro website for more information. Sydney Harbour and foreshore In anticipation of the Sydney 2000 Olympics, the Sydney Harbour Foreshore Authority Act 1998 was created to enable the Sydney Harbour Foreshore Authority to regulate various matters concerning Sydney Harbour, its foreshore, Darling Harbour, the Rocks, Cockle Bay etc. The Olympics came and went, but the legislation was retained and regulations were even upgraded to create the current Sydney Harbour Foreshore Authority Regulations 2006. Of particular interest to photographers is Part 2 — Reg 4, which provides a long list of prohibited Commercial and other activities including: r4(b): use [of] any audio, loudspeaker or broadcasting equipment or camera (whether photographic, cinematic or video), for a commercial purpose, […] Thus despite being “public land”, any saleable photo taken in or around Sydney Harbour (or the… truncated (80,575 more characters in archive)