Photography and Privacy

This document provides resources relating to the balance between the freedom to take photographs, on the one hand, and privacy on the other. No simple answer can be given to questions in this area, variously because of:

  • changing technology
  • the enormously wide range of contexts of use
  • unclear, flexible and changing social attitudes
  • considerable variations in law across the States and Territories

Please advise corrections, improvements and updates to the APF Web-team.

Until about 2000, there were few instances of legislation that explicitly addressed this question.

The first initiative was the emergence in some jurisdictions of legislation to relgulate ‘surveillance devices’, to replace outdated and inadequate ‘listening devices’ laws.

Then, following the incorporation of cameras into mobile phones in about 2002-05, a flurry of media activity occurred, reporting surreptitious photography in changing rooms, and linking it with ‘upskirting’ – the installation of cameras at ground-level in order to take photographs literally up skirts.

The Australian Privacy Foundation issued a Media Release on 7 August 2003, drawing attention to the regulation of optical surveillance of private activities by the Surveillance Devices Acts of W.A., Victoria and N.T. It suggested that these laws be examined for their effectiveness, and that citizens in other States and Territories argue for the enactment of similar or better legislation. N.S.W. and Queensland have subsequently enacted very specific provisions rather comprehensive surveillance devices regulation. It does not appear that S.A. or the A.C.T. has responded.

In 2004, the N.S.W. Summary Offences Act s.21G was inserted, to make ‘filming for indecent purposes’ an offence. In addition, s.21H makes it an offence to install a device to facilitate filming for indecent purposes. Around New Year 2005, Waverley Council in Sydney proposed to introduce a blanket ban on cameras at Bondi Beach. The then Chair of APF wrote a letter to The Sydney Morning Herald on 18 January 2005, drawing attention to the new NSW offence, and urging that a sensible balance be found. It was – the Council withdrew its proposal.

In 2005, ss.227A-227C of the Queensland Criminal Code were inserted to regulate ‘observations or [visual] recordings in breach of privacy’. Guidance is provided in the Queensland Courts Bench Handbook.

The Queensland approach is supposed to be being considered by SCAG (the Standing Committee of Attorneys-General) as possible model legislation. Electronic Frontiers Australia (EFA) provided a comprehensive submission to SCAG in relation to the matter, in October 2005. But, as with everything related to the disreputable institution that is SCAG, don’t rely on anything sensible ever happening. The Commonwealth Attorney-General’s Department actively suppresses information about SCAG activities, and it appears to have removed the Discussion Paper from the Web.

In some circumstances, photography could represent (or more likely be part of a pattern of behaviour that represents) harassment or‘stalking’. Here is a summary of Australian laws relating to stalking, mirrored here.

Depending on the circumstances, the Privacy Act, and the National Privacy Principles is contains, may be applicable. This is because a photograph may constitute “personal information”, and persons who “trade in” personal information are subject to the Act.

Conduct a search of the Privacy Law & Policy Reporter’s archives.

See in particular:

Theedar S. (1999) ‘Privacy in photographic images’ Privacy Law and Policy Reporter 6, 5 (1999) 75

Burton K. (2006) ‘Erosion at the Beach: Privacy Rights not just Sand’ Privacy Law and Policy Reporter 11, 8 (2006) 216

Roth P. (2006) ‘Unlawful Photography In Public Places: The New Zealand Position’ Privacy Law and Policy Reporter 11, 8 (2006) 213

Nemeth A. (2006) ‘NSW Photographer’s Rights’, last updated November 2006