Can my photograph be taken or published without my consent?
Existing laws and remedies for the taking or publishing of a person’s photograph without their consent involve stalking / harassment laws, nuisance and trespass. If the photograph is used to imply that the person endorses a particular product, this is known as ‘passing off’, and there may be a remedy under the Trade Practices Act.
The NSW Government has also recently passed new amendments to the Crimes Act 1900 (see Division 15B) which makes it an offence to observe or film for indecent purposes or to install a device to facilitate observation or filming for indecent purposes. “Filming” in this context includes the recording or transmission of still (photograph) or moving (video) images.
Privacy laws, which deal with the handling of personal information, don’t generally regulate the behaviour of individuals. (Find out how privacy laws regulate the behaviour of government and business organisations.)
However this gap in regulation has been reviewed by the NSW Law Reform Commission, which reported in February 2001. The Law Reform Commission recommended a comprehensive system of surveillance regulation, in which personal privacy should be the paramount concern. Click here to read the Law Reform Commission’s Report on Surveillance.
Privacy NSW strongly supported the Law Reform Commission’s recommendations, and has recommended that in the development of new laws, the proper balance needs to be struck between the public interest in the protection of individuals’ privacy on the one hand, and the public interest in law enforcement and public safety on the other. Click here to read our submission in response to the Law Reform Commission’s Report on Surveillance.
Individuals who are concerned that their privacy has been invaded by the use of a camera or video to take and/or publish their photograph without consent may make a complaint to Privacy NSW. Click here for more information about making a privacy complaint.
If the photograph involved the person in a state of undress or engaged in a private act, and the photograph was taken for the purpose of sexual arousal or gratification, the person should instead make a complaint to NSW Police about the criminal offence covered by the Crimes Act 1900.
For legal advice on these issues you could contact your local solicitor or community legal centre, or one of these specialist legal centres:
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