Today, almost everyone has a smartphone with a high-resolution camera, consequently transforming the best of us into amateur photographers. So when can you legally take photos in a public place? Below, we set out some considerations you should bear in mind before sharing your snaps.
The General Rule
In Australia, there is no general right to privacy, and you can usually take a picture in a public place. Justice John Dowd best summarised the position when he said a “person, in our society, does not have a right not to be photographed (R v Sotheren  NSWSC 204 at ).
Photos Taken From a Public Place
There is no restriction on taking photos from a public place of subjects that are on private property. However, in this situation, you should be wary. Under the common law, you can be found liable for nuisance or interfering with a person’s right to use and enjoy their land (see Bathurst City Council v Saban (1985) 2 NSWLR 704). “Snooping” into someone’s private property can interfere with their right of use and peaceful enjoyment.
Notably, although you may be able to take photos in a public place, you cannot grossly intrude on someone’s privacy. Each Australian state and territory regulates any gross violation of privacy. For example, it is a criminal offence to take a photo of someone without permission, where the person is doing a “private act” and the person can reasonably expect privacy. Private acts can include things such as using the toilet, showering, or having sex in private. Penalties can be up to two years in jail.
Photos for Commercial Use
Photos taken for commercial use are sometimes treated differently than when you are taking pictures for private use. So, if you are taking photos for an advertising campaign or a music festival, you should obtain a “model release form” or “location release form” signed by the subjects you are photographing.
A model release form typically includes an assignment of intellectual property rights (i.e. the subject of the photo gives the photographer the right to use, publish and share their photo). A release form will also likely state the purposes for which the photographer will use the image, including for commercial use (e.g. a street style blog). Failing to obtain a release form may incur liability for breach of council regulations or damages for trespass.
Private property owners or public entities such as local councils, educational institutions or museums may permit photography in certain situations under terms of entry. You should be aware of these terms before entering the premises.
Although the starting position is that you can take photos in public, you should always be respectful of others – you wouldn’t want someone with a camera lens in your face or intruding your personal space. You should also consider asking your subjects to sign a release form if you are taking photos in a commercial capacity. If you have any questions about taking photos in public or need assistance drafting a model release form, get in touch with our intellectual property team on 1300 544 755.
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