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your image
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your image
This page considers questions of personal image management
- what you can do in restricting misuse of photographs
of yourself (or people for whom you are responsible) in
Australia.
It covers -
introduction
Do you own your image? Can you stop someone taking making
a still photograph, film or video that features that image?
Can you stop them using the image - online or otherwise
- for their personal use or providing it to others without
your permission?
As the preceding pages of this note have indicated, the
answer depends very much on circumstances and jurisdiction.
In Australia there are no explicit rights of publicity
or personality. You thus do not have an absolute 'copyright'
in your image. Statutory and common law protection for
privacy is patchy. Broadly, you may be able to use defamation
and trade practices law to restrict print and electronic
use of your image.
Privacy
As discussed elsewhere on this site, there is no comprehensive
right of privacy in Australia.
It is no fundamentally protected by the national Constitution,
there has been limited recognition in common law and protection
under both federal and state/territory law is arguably
inadequate.
Much state/territory law centres on covert surveillance,
typically seeking to restrict the making of photographs
or videos in circumstances (such as change rooms and hotel
bedrooms) where an individual would have a reasonable
expectation of privacy.
That expectation is not found in public places and, subject
to concerns regarding offensive behaviour or commercial
exploitation, it is thus legal under both federal and
state/territory law to photograph, film or video people
in the street, beach or a public park.
Overseas regimes have been more progressive and the von
Hannover and Campbell cases signal that Europe is placing
some commercial photography out of bounds on the basis
that it infringes the individual's human rights.
It is unclear whether photography of no-celebrities (for
example Ms von Hannover's dentist or baker) would also
be out of bounds, leading some observers to quip that
all Europeans are equal in terms of privacy protection
but some are more equal than others.
Although covert surveillance law exists in Australia,
there has been little litigation and recourse to the courts
is expensive. The statutes unsurprisingly provide for
photography, film and video recording for law enforcement
purposes. Images obtained on that basis can be recognised
by courts.
Misleading Conduct
In practice a stronger protection against publication/distribution
of unauthorised images is provided by what can be broadly
characterised as trade practices
protection, in particular remedies under statute and common
law for passing off. That protection again favours celebrities,
rather than cooks and cleaners, and is dependent on circumstances
As highlighted earlier in this note, Australia's national
Trade Practices Act 1974 (complemented by the
equivalent provisions in the state/territory fair trading
enactments) prohibits commercial conduct that deliberately
deceives consumers.
Australian case law has centred on action by celebrities
who have claimed that their image has been used in a way
that would mislead consumers into believing that the celebrity
had endorsed a particular product or service. That use
has not been authorised by the celebrity; it is offensive
on the basis that it may reduce the celebrity's earning
capacity or present the individual in a false light through
purporting endorsement of something that the celebrity
does not use/support (and indeed may like).
Athlete Kieran Perkins for example sued Telstra over unauthorised
use of his image in an advertisement, with the court holding
that use of the image an an associated statement would
incorrectly lead viewers to believe that Perkins preferred
Telstra's service to that of its main competitor.
It is worth noting that Australian courts have not provided
protection in instances where they have found that commercial
use of an image was not misleading and that there broadly
no restrictions on news reporting, eg a the person behind
the camera can snap away when encountering a celebrity
in the street (subject to compliance with public safety
and stalking regimes).
good citizenship
One response to abuses, perhaps so obvious that it is
frequently ignored, is not to endorse them.
In discussing attitudes
to privacy we have noted apparent inconsistencies. Consumers
typically express concern, even outrage, over perceived
breaches of their privacy yet claim a 'right to know'
regarding the lives of celebrities or other 'public figures',
who are assumed to have surrendered some privacy through
being famous or infamous.
Those public figures include media personalities (a particular
target of paparazzi) and politicians. They also include
stigmatised individuals/groups and those who are the subject
of 'expose journalism'.
Breaches of their privacy - including publication of purloined
letters and family snaps, photographs by photojournalists
(some of whom are barely distinguishable from stalkers)
who have lurked in public places or trespassed in hospitals
or other private property, and covert video from gyms
or changerooms - are recurrent features of many tabloid
newspapers, celebrity magazines and the festivals of prurience
badged as current affairs television.
On occasion that has resulted on physical attacks on journalists.
In Australia for example it is common for defendants to
lash out at camera crew dogging their departure from court
proceedings, with fisticuffs being a recurrent feature
of tabloid tv. Other figures have ended up in court after
attacking a photographer who made a photograph in a restaurant
or other place. Former Australian politician Mark Latham,
for instance, was accused of destroying a $9,000 digital
camera and trying to punch photographer Ross Schultz during
an incident at a fast food outlet in 2006.
Consumer activism has a role in dealing with unauthorised
making and publishing. Individuals who value their own
privacy - and respect that of their peers - can crimp
outrages by eschewing the paparazzi culture rather than
being complicit. Switch channels (or even turn off the
box), don't buy the tabloids, even complain to publishers
and regulators.
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Ketupa