Lawyers are often asked whether it is lawful to photograph someone without their permission. In this era of social media, it is very common for photographs to be taken and circulated without the subject’s permission. Some of these images may even have been taken in intimate spaces. While some countries have passed laws to protect individuals from unwanted photography and to give people the exclusive right to control the use of their image, Australia has not yet done so. This page deals with the laws around unsolicited photography in Australia.
Privacy rights
In the US and UK, the right to privacy is based on whether a person has a reasonable expectation of privacy in the circumstances. In a public place like a street or on public transport, a court is unlikely to find that a person had an expectation of privacy. If such a right was found to exist, it would have to be limited and balanced with the right to freedom of expression.
In the US, it is common for courts to be asked whether it was reasonable to photograph someone without permission. In the following situations, it has been found that a person’s right to privacy was breached:
- When Naomi Campbell was photographed without her permission outside a Narcotics Anonymous meeting
- When JK Rowling’s son was photographed in his pram in the street
Although there is variation between different states, in the US it is generally not permissible to photograph someone in a situation where they have a reasonable expectation of privacy.
When is it illegal to photograph someone without their permission in Australia?
In Australia, you may be committing an offence if you photograph someone without permission or publish a photo of someone without permission in the following situations:
- Where the publication is of naked or sexually explicit photos of a person without their permission and the publication amounts to harassment, intimidation or humiliation or the person. This may fall into the categories of ‘stalking’ or ‘offensive use of the internet’ both of which are offences in all states and territories;
- Where the publication is of intimate images without consent;
- Where the publication is of images of a person leaving or entering an abortion clinic.
When is it illegal to photograph someone (even with their permission)?
In some situations, it is unlawful to photograph someone even with their consent.
These situations include:
- taking images in an area where photography is prohibited such as in court;
- taking photos or videos somewhere that a person can reasonably expect to enjoy privacy such as in a changing room;
- taking, publishing or distributing naked or sexual images of a person who is aged under 18.
Contrary to widespread public perceptions, it is not illegal to photograph someone without permission or to publish images of a person without permission in Australia under other circumstances. There is no civil remedy for having photographs taken of you without your permission or for having such images published or distributed. Furthermore, it is not unlawful to photograph children in public places without the permission of their parents provided the images do not breach criminal laws about child abuse material.
If you require legal advice or representation in any legal matter, please contact Taylor Rose.
