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Australia
This page considers Australian debate about unauthorised
making and publishing of photographs.
It covers -
It supplements discussion of the Australian
privacy and censorship
regimes.
The following pages examines specific aspects of Australian
legislation and practice.
introduction
The past five years have been marked by expressions of
concern in Australia and overseas regarding unauthorised
taking and publishing of photographs, in particular web
publishing of photos of young people.
Those concerns have often embodied a misunderstanding
of intellectual property and content regulation legislation,
with for example recurrent claims that -
- it
is illegal to take any
photograph of a minor without authorisation by a parent/guardian
- publishing
such photographs on the web is a criminal offence
-
Australian law comprehensively prohibits 'street photography'
(including images of public beaches and crowds in streets
or other public places).
They have been fuelled by -
- incidents
in which voyeurs and those whose interest is arguably
more legitimate took and published unauthorised photographs
of children, teens and adults in public places or at
private functions such as weddings and parties
- covert
photography of individuals in wholly private circumstances
(eg in bathrooms and changerooms) and in locations such
as gymnasia where the individual has some expectations
of confidentiality, for example tabloid photos of UK
Princess Diana without her permission while working
out at a London gym
- publicity
about activity such as 'upskirt cam' photography
- complaints
and litigation by Australian and overseas celebrities
to inhibit paparazzi, including use of stalking
and even human rights
law
- prosecutions,
successful or otherwise, in Australia and elsewhere
of people who have used conventional cameras and camera-equipped
phones in beaches, parks and streets
- implementation
by schools and other institutions of photography authorisation
protocols, misunderstood by some parents as based on
comprehensive legal restrictions on all photography
- recognition
of the potential for integration of overhead photography
(images from planes, satellites or even balloons) with
geospatial data - for
example the GoogleEarth
service.
They
reflect evolving community perceptions of privacy, risks,
rights and technologies. One outcome was release in 2005
by the Standing Committee of Attorneys-General (ie the
federal, state and territory law ministers) of a discussion
paper on Unauthorised Photographs on the Internet
And Ancillary Privacy (PDF).
In exploring concerns that paper noted a patchwork of
existing legislation such as the Victorian Crimes
Act, NSW Summary Offences Act, WA Surveillance
Devices Act and ACT Public Baths & Public
Bathing Act.
It refrained from offering easy remedies, recognising
that simplistic solutions will not address some issues
and may have unintended - and perhaps quite adverse -
consequences.
background
The preceding page of this note commented that expectations
about rights, responsibilities, threats and responses
have not been stable.
For much of history 'privacy' was a matter of physical
barriers - more frequently enjoyed by the powerful than
the powerless - and offenders such as peeping toms were
dealt with under public order or trespass regimes (often
under common rather than statute law) rather than a specific
privacy enactment.
Ordinary citizens thus had little control over commercial
exploitation of their 'image', whether captured by hand
or by a camera. Those with lesser recognition by the state
(such as prisoners, people with psychological disorders
and Indigenous people) had even smaller control and were
thus often photographed or depicted without any pretence
of permission.
Non-commercial use was even less restricted: if you could
see an individual/group you were generally free to sketch,
paint or photograph and thereafter reproduce that depiction.
The artist and publisher might indeed enjoy greater rights,
through copyright, than the
subject of the depiction - 'ownership of the image' was
typically held by the person who made the image.
Advances in technology - an 'upskirt cam' was unfeasible
in the daguerrotype era but became practical with the
introduction of the Minox - broadly coincided with the
emergence of personality rights
in common law and judicial respect for the privacy of
individuals.
As discussed in the complementary Australian
privacy profile, the national constitution
does not feature an explicit right of privacy and courts
have been slow in extending data protection provisions
in federal legislation. State/territory parliaments and
courts have been somewhat more positive in addressing
concerns about covert surveillance, although such protection
centres on the activities of employers, police and private
inquiry agents.
The Australian regimes similarly have not entrenched personality
rights - primarily concerned with commercial exploitation
of images of celebrities - and have been reluctant to
impose special restrictions on journalists and media proprietors.
That reluctance has offset uncertainty about statutory
recognition of free speech,
for example through a national Bill
of Rights.
Legislators have been swifter to move
against offensive content, in particular prohibiting the
creation, publication and sale of child pornography using
digital or traditional media.
a digital disorder?
The turn of the millennium saw
- large-scale
uptake of digital cameras, notably camera-equipped mobile
phones (with estimates that over 2 million phone cams
were in use by early 2005 and that 40% of Australian
households had some form of digital camera)
- widespread
access to digital image editing software, often included
in packages on domestic personal computers
- increasing
availability of or awareness of internet publishing
tools
- anxieties
about the safety of children and notions of the 'digital
predator'
- media
coverage of covert photography in change rooms or other
private venues
- opportunistic
statements by advocacy organisations, for example the
Australian Computer Society's call for phone manufacturers
to "do more to discourage rogue users" from
'upskirting' - a practice that is supposedly "becoming
increasingly prevalent"
- calls
to ban "candid photography" in public places
- threats
of litigation by celebrities against professional and
amateur paparazzi, along with the occasional incident
such as former ALP leader Mark Latham wrecking a photographer's
camera after arguably being harassed
- prosecutions
by municipal and state governments over photography
in public and private places
That
resulted in an ABC promo that
They're
small, they're cheap and they're watching you. With
today's mobile phone cameras you could have your picture
taken by a complete stranger and posted around the world
via the internet
and
the Sydney Morning Herald's
Smile.
You're surrounded by mobile camera phones. In just a
few years, most Australians will have one, unleashing
potentially millions of citizen paparazzi and countless
more candid photographs.
Clandestine images of topless bathers on the beach -
or even greater revelations in the change room - are
just the beginning, as we lose control over our public
image and privacy laws struggle to keep pace. ... We
are already starting to see the effects of people snapping
others in places where cameras have previously been
precluded by manners and convention.
Celebrity spotting, a favourite pastime of many, is
being vaulted to new levels of possibility. Ordinary
folk, already labelled in the US and Britain as "snapperazzi",
with mobiles poised and a gossipy nose for news, are
making good pocket money selling their shots of celebs
to supermarket weeklies.
If Nicole already can't stroll along Palm Beach now
without being mobbed, or Russell can't look over the
balcony of his apartment without being snapped, then
improved technology in the hands of all will soon make
public appearances twice as risky.
In
practice notables are likely to prove adept at managing
appearances.
how many offences?
In practice it is difficult to reach beyond anecdote and
hyperbole in search of solid figures. Put simply, there
are no consolidated statistics at the federal or state/territory
levels about unauthorised photography in general and more
specifically about offences in private/quasi-private venues.
We have highlighted selected incidents later
in this note.
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