Photography In Public - Is It Legal?

is-photography-in-public-legal

Australia has plenty of laws and it's best to seek legal advice if you have any real issues in this matter. I am not a lawyer or solicitor.

Today, If you are a photographer could find yourself in a situation where you might be looked upon negatively - especially when pointing your camera in the direction of children. Protective parents may not like the idea of you snapping photos around and toward their kids, and the larger the lens the worse you can look.

In Australia, unless there is a legal prohibition or a legally authorised sign indicating photography is not allowed, you can photograph virtually anything you want - Obviously there is an exception if deemed by law that it's of a sexual nature - voyeurism or pornographic. 

sydney model photographer

Basically you can take photos of buildings, landmarks, street performers, people walking, running, talking, eating and similar can all be photographed in public without their consent.

But...does this mean you should?

public photograhy in australia

Australia has certain laws regarding photography, but overseas those laws can differ greatly. Before travelling, check local laws and regulations before taking photos around landmarks or public venues or you could be stopped, or even fined for breach of international laws on photography in public.

You can photograph anyone in public, unless there is a 'reasonable expectation of privacy' or as mentioned - there is a government order or legal sign stating otherwise.

It's important not to go 'beyond the limits of decency' as this can be deemed obscene or offensive and possibly - a criminal act. The limits of what is decent is recognised mostly by law - but can be explained as what is 'socially acceptable' by the majority in your country and the rest of world.

 

EXPECTATION OF PRIVACY

public photography in australia

With schools, fitness clubs, gyms, change rooms and public toilets - there is of course an ‘expectation of privacy’.

On the street - in public, eating food, drinking, walking, playing or going about everyday life. there is no expectation of privacy. Anyone can take your photo - all day long - and generally that's what is happening via security and street cameras - you just dont know it.

Unless you find yourself in a situation where you are being targeted continually and followed by a photographer (which could be regarded then as harassment or stalking) then you have no legal basis for someone to stop taking your photo.

 

WHAT'S THE PHOTO FOR?

photographing models in public

The first thing that you should think about before taking a photo is, is it for personal use or will you make money from it?

The rules are different if you plan to sell your photo. For example if you are photographing a model or models in public - will there be the faces of people from the public in your background? Are you are selling stock images online? Is it part of some paid advertising campaign?

It's logical to think if you were not purposely removing these people either with software or a wide aperture - then someone in the photo might be recognised and be unhappy about this. If you are a professional then you will know the rules. If not, do your research so you know what is, and is not a good idea.

 

WHERE WILL IT BE PUBLISHED?

sydney professional photographers

If you take street photography images and post your photos online on platforms such as facebook, instagram or flickr, then legally it's ok to do this. Except when the images are indecent, obscene, offensive or demeaning.

If you are making money from the images because they are part of some paid advertising campaign then it's best to be upfront.

If using your images in advertising means you will be paid very well and your model(s) did not sign a 'model release form' - meaning they give you permission to use the images of them for any and all purposes you need to - then expect a knock on the door or a phone call to be asked for some kind of payment - possibly followed by some litigation. 

Its best to take the view that if you are selling your images for advertising/commercial purposes, it doesn’t matter if people are shot from the rear or in silhouette, distorted or even just body parts like an arm, leg or even a hand, get a release and then you are covered.

There are a few grey areas here - what if you dont know if your photo will sell, or you will make a heap of money from it?... then do some research as a photographer BEFORE signing contracts and handing over the images, so you know what position you are in legally.

HOW OLD ARE THEY?

childrens photographer sydney

Legally you dont need to ask someone their age before you take their photo including children or young people in a public place. Although it's a good habit to get into especially when you are part of a photography group where photos will be posted online in a place where they may be seen by the person (the subject) or their family.

Photographers often ask a parent's or guardian's permission before taking the image of the child or children. As you dont know what the situation of the child is. If you dont - it's a good habit to ask in future situations.

I find parents are more than happy to have their children photographed if you ask nicely and simply let them know what the photos are for. Especially if working for a venue - it's easy to say the photos are for the venue to advertise the event or families enjoying themselves at their venue for example.

WHO ARE THEY?

homeless person in sydney

Is the person in the photograph in a vulnerable position or state?

Maybe they are sleeping, drunk or asking for money. Legally you can take their photo. Although it's not an ethical debate, it's a valid point to consider who you are choosing as your subject.

Many street photographers like taking photos of the homeless or those who may be less fortunate - and label this as 'art' or 'street photography' - but really, aren't you just painting these subjects in a negative light? ... Are you trying to sell yourself as a professional?... What do your images say about you?

 

WHAT'S THE LOCATION?

photography in public sydney

If you are at a beach or public swimming pool look for signs about photography. Many councils impose restrictions and bans on the use of cameras, tripods, and lighting equipment.

Logically if you are creating a hazard for the public, you open yourself up to public liability issues. Putting the public at risk is just plain irresponsible. Putting every precaution in place to reduce this risk is most important or you will need to deal with the consequences. Depending on where you are, you may need to pay for a permit to be taking photos in a public park or similar.

Private property is a space where the owner can set rules or restrict entry. This includes homes, shops, sport centres, performance venues, museums, galleries, schools and similar places.

 Shopping Centres and Government buildings have particularly strong laws on photography due to the increase of terrorism worldwide. Although these areas may be 'open to the public' the 'Enclosed Lands Act' enables the landowners to set rules about what can and can't be done while on the property.

Security Officers, Lifeguards, Lifesavers, or other officials (do not) have the right to stop you from taking photos...

They do have the right to keep you away from areas where you may impede their activities or endanger the safety of the public or if you are being a public nuisance or if you are on PRIVATE PROPERTY or if there is a legal sign indicating no photography is allowed.

If you are on private property, and have been told to stop and leave then it's best to do so. If you are asked to leave and refuse, that then becomes trespass a prosecutable offence that can impose a conviction. Because of the 'Enclosed Lands Act' the police can legally remove you from the property and may charge you.

 

WHAT ARE THEY DOING?

model photographer sydney

Law on what is appropriate and legal may differ from state to state. For example, in NSW there is laws on the protection of privacy and reputation (defamation) which - if breached -  can lead to litigation.

If you take photos of a prominent person or business and then use this image or images to cast the person or property in a negative light - be prepared to face legal action.

There is also Anti-Voyeurism laws that target images of a sexual nature such as up-skirting, topless beach photos and similar that could be used for sexual gratification of any kind.

If you are doing something deemed illegal, dont expect to get away with it for long. If you advertise yourself as a 'photographer' and have any kind of reputation, then it's highly advisable that before you take or use photos in a 'different' way to the majority - do your homework first. 

 

YOUR RIGHTS AS A PHOTOGRAPHER

sydney photographer 1800829994

By law - People do not 'have the right', not to be photographed. Without a court order - no one can cake your equipment, film, memory card or similar. Taking equipment directly or indirectly by threatening to use force can be deemed as a criminal act such as assault, theft or coercion.

Generally it's illegal to instill a fear in someone that they may be harmed, take someone's equipment or property, or falsely accuse you of a criminal act - just because you are taking photos.

If it has become obvious via a security organisation or police, that you have been involved in a criminal act and there is sufficient evidence that you have been identified as being involved in up-skirting or voyeuristic photography or the taking of video with any device including a mobile phone, then you can be detained by security and the police called to investigate, then it's up to them to take the matter further. Police can take you to be questioned at a police station and may decide to formally arrest, detain or charge you.

Illegal stalking in public

If someone has threatened, intimidated or detained you or for taking photographs, they may be liable for charges such as kidnapping. 

Should you find yourself in a situation such as this, and the person becomes hostile or combative, you should consider calling the police. 

You have the right to ask the person's NAME and EMPLOYER. If they insist you leave the area and stop photographing where there is no legal basis for you to stop - ask how they propose to do this. If you are being delayed, and want to leave the area, ask if you are 'free to leave'... If you are told you are not 'free to leave', ask what LEGAL BASIS they have for you detention.

Consider taking their photo for later use for positive identification for police.

Really though, unless you are a professional photographer (paparazzi) who provides photos to the media or similar, why purposely put yourself in such a situation?

USE COMMON SENSE

sydney digital photography services

As a good rule of thumb - stop and look at the situation you are creating for the subject. Pushing a lens in a person's face with the idea that you have the right because you call yourself a photographer and want to take a person's photo - is only going to cause conflict. 

Take a step back and think. What if that was me, my husband or wife or child or my parents - how would I or my family react if put in that situation.  What story is this image going to tell about me, my business or the subject in the photo?. Needless to say if you run a business, and you are becoming a public nuisance - it's NOT going to get you more business.

For all your photography needs, contact Joel on 1800 82 9994