Ask LH: Are There Any Real Photographer’s Rights In Australia?

Image: iStock

Dear Lifehacker, Today I had my first run-in as an amateur photographer with a security guard at a local shopping centre (taking pictures of the outside). It was pretty tame but it once again got me thinking: is there such a thing as a single unified list of photographer's rights in Australia?

So far, based on the research I've done, the answer appears to be "No" but I'm wondering if Lifehacker AU readers might know better. There are succinct photographer's rights cards available for both the USA and UK but Australia's multi-level quagmire of federal, state and local laws and then private property policies on top of that seem to make that nigh on impossible here. Any ideas? Thanks, Daniel

Dear Daniel,

As you've already suggested, the complex legal situation in Australia — and the lack of anything like a bill of rights to enforce either a right to privacy or a right to free speech — means that the law regarding photography in Australia really doesn't lend itself to being summarised on a single card which you can wave at anyone who objects to your photographs. In the case of private property (which includes shopping centres, entertainment venues and lots of other places the public has access to) it would be meaningless anyway: the owners of the property can, for all practical purposes, set whatever rules they like.

Much of the online discussion around this issue focuses on US legal issues, which have pretty much zero relevance in Australia. Andrew Nemeth's NSW Photo Rights is a useful exploration of the complex legal issues involved. While it focuses on NSW law and on taking pictures of people, it's a great read for anyone who wants a more in-depth examination of the factors involved.

Given the prevalence of camera phones in the modern world, photographs get taken in public places and other "forbidden" venues much more often than they used to, and as often as not no-one bats an eyelid. What tends to make you stand out is either having a larger SLR in the first place (these don't go down well at AFL matches) or pulling out a tripod. Long-term videoing can also attract the attention of security guards, though again it depends on the context; there's no shortage of concert bootlegs on YouTube, but you won't last long in an average theatre trying to photograph or film a stage play. Museums often don't mind photography, but balk at the use of flash (though lots of people apparently can't read the enormous signs with those rules in place).

If anyone does know of a pocket rights card specific to Australian photographers, please tell us in the comments, or share your strategies for taking photographs without getting hassled by officious types.

(And a final note for anyone who is wondering where the apostrophe police stand on a phrase like "photographer's rights": those rights are exercised individually, not collectively, so they are correctly assigned to each individual photographer, not photographers as a group.)

Cheers Lifehacker


Comments

    It's my understanding that if you are standing on public property, you can pretty much take a photo of whatever you like without permission (including people on private property) with a few exceptions (such as within Flinders St & Southern Cross stations).

    What most people don't realise that shopping centres are private property so within their land (which includes the car park) you have to follow their rules.

      Andrew Nemeth makes the point that stations in Victoria might well be considered private property given privatisation of the rail service.

        I don't think Train Stations are owned by private train operators though.

        I know trains are still property of the government, I would imagin the train stations are too.

        Wil,

        I know that in Victoria, train stations are considered private property. Found this out during the election when several running members were fined for having paid people to distribute material on stations, who then refused to leave when asked.

        As far as finding out anything else, maybe kidnap a Journalist and interrogate them for their arcane knowledge?

        Or you know, just ask a pro, might be easier...

        As an interesting (and annoying) aside (and this was last time I checked which was about 12 months ago), as an amateur photographer that is not a member of a photography club, I can get a permit to shoot at Flinders St station, but it's impossible for me to get one for Southern Cross (which is a shame as there are quite a number of good spots to shoot from).

      Sam is correct. If you are standing on public property, you can take photos of whatever you want, including people. When it comes to people, I believe the legal term is "reasonable expectation of privacy". Don't violate that expectation and you're fine (ie, don't stand on a step ladder to see over a private fence).

      The only exceptions here, apart from the previously mentioned private property issues, are when the resulting material is to be used for commercial purposes. Most places are fine, but some palces, for example the Sydney foreshore, you require council permission to sell/use images commercially.

      One thing to remember though is that once you've taken a photo, no matter where it was taken, security guards or even cops have no right to make you delete the images. Cops CAN however, seize your camera (but not security guards), but that opens up a whole 'nother can of worms for them and they're usually not stupid enough to do that, unless they have a good reason.

      On the whole though, cops are not a problem. I've done a commercial shoot on the lawns outside parliament house and really the AFP just stood around and watched. I had the relevant permission though. I've also been harrassed by security guards for shooting in a park adjacent to a shopping center. It happens. The key is to stay level headed and rational when it does.

        Dammit, if i hit refresh before posting i would’ve seen you beat me with a lot of the same info.

        ...Lousy awkward reply buttons

    I'd be also interested in where you stand if you record a live event like a conference or meeting with the intention of making it available online afterwards. Do you have to seek permission from all these people that feature in the recording or just from the event organiser? Do you even need to let them know that they are being recorded?

      Should only need permission if it's used for commercial purposes. And it's always best to let them know they are being recorded.

      Dammit, if i hit refresh before posting i would've seen you beat me with a lot of the same info.

      It would also depend on whether there is public/general access to said meeting/conference, and whether there is any expectation of it being recorded. A "private" meeting which is secretly filmed without permission would risk being illegal, in the same way that you can't record someone's phone conversation without their permission.

        As far as the "recording a phone call" goes, I have looked into it recently and found that only ONE of the people on the call has to give permission for the call to be recorded, which means that if YOU are one of the people on the call, you can give yourself permission to record the call. It is just a common courtesy to inform the other party that you MAY record the call for training, legal, reference... or any other purpose. (legal loophole). I am a security guard and was informed by my superiors of this "loophole" when I needed to record a call with a 'client'.

    You can't photograph yourself naked in any state library or courthouse, at least during the month of September.

    Trust me, I tried.

      Apparently if you're name is Spencer Tunick you can photograph 5000 naked people on the steps of the opera house...
      Trust me, i'm in the picture.

        POIDH! On second thoughts, don't bother...

    The best way to approach it is if you are on public property (i.e. streets, parks, or anywhere you have no expectation of privacy) anything you can see can be photographed. If you are on private property be prepared because you can be asked to stop and they can call the cops to move you on. I believe that no charges can be pressed unless you resist the police or there are strict rules about photography at the location.
    Train stations in NSW are a bit of a gray area but in general if you take pics without being an arse or getting in anyones face you should not be bothered (i've been doing it for years).
    Finally no one can force you to delete photo's without a court order... or a weapon, if someone has a weapon just delete the photo's they're not worth it.
    I'm not a lawyer, i'm just a photographer in sydney who tries to get away with shooting wherever i can. I looked into the laws a little to avoid any issues.

      Train stations are usually OK with taking photos (with the Victorian exceptions) but ONLY if you shoot 'hand held', using a tripod will usually attract unwanted attention and more than likely get you removed from the station as tripods are considered an 'obstruction' to the free movement of commuters.

    You could always just agree to delete any images to keep the peace, and then swap out the memory with a spare.

    When you get home, run file recovery software on the memory card you removed. Because you didn't overwrite the images, you can easily get them back 9 times out of 10!

    From recollection, museums are alright with photography IF it's a permanent exhibition. If it's temporary, you can't photograph it (source: http://www.copyright.org.au/find-an-answer/browse-by-what-you-do/photographers/ Page 2 of the FAQ: Do I need permission to photograph artworks displayed in public places?)

    I've had the police call me up because I was taking photos of a local power station from public land (nice sunset behind the smoke chimneys. Good shot!). They told me that in the future, to approach security and just inform them of what I was intending to photograph so they're not suspicious. But from my understanding, my position was in a public area (a public road that stretched between two towns) so they don't have much to go on next time.

    But as others have said, shoot away. Unless there's a sign prohibiting photography, they can't do a whole lot. And they certainly can't ask you to delete the photos. That's why I still have concert photos from Fleetwood Mac -- for my own private collection, of course.

    Check out this link:

    http://www.artslaw.com.au/info-sheets/info-sheet/street-photographers-rights/

    It is the Arts Law Centre of Australia's own info sheet on the subject.

    "and the lack of anything like a bill of rights to enforce either a right to privacy or a right to free speech"

    http://www.nswccl.org.au/issues/bill_of_rights/australia.php

    John Howard once did support a bill of rights...for iraqis, not us.

    Australia, land of the free, lol, nope

      The Australian Constitution has implied rights.

    Hi

    I am a security guard at a corporate site in WA. The site has several sculptures and water features, this leads to many people wishing to take photos/videos. Unfortunately I have to ask them to leave the private property, they are welcome to continue taking footage from the surrounding public sidewalks etc. This has been explained to me by the client as an insurance problem, if the photographers can approach Management and provide the required proof of public liability insurance (varies between 10 to 20 million at various sites) then authorization is given. The "rules" I have mentioned seem to be universal across most sites my co-workers or I have worked at.

      Is anybody being harmed when they take photos of the sculptures and fountains?

        Hi Ben

        No, no one is being harmed. I don't agree with it but that seems to be the way everyone is going now, the old CYA (cover your a*#e). I have several different opinions on the real reasons. The main one being that sites do not want to have their tenants and the tenants visitors being photographed without permission (even though this can be done from the pavement).

    While it is legal to shoot pictures from a public space, such as a public roadside, it does not allow for photographers to obstruct other people. Basically meaning that you can not use a tripod, light stands or other equipment that might in effect, get in other people's way.

    Hey here's a novel idea....
    Why not just politely ask if it is OK to photograph?
    Geez, why is everybody concerned about their "right" to do something? Why do you even think you should have a "right" to photograph me, my family, or my home, or my workplace?
    Just ask first!

      For the same reason you are not expected to say "I consent to that" for every contact with another person on a crowded bus.

      The word "Right" is usually misused. There are 4 types of rights: Right, Liberty, Power, Immunity.

      It is likely that when people are referring to their "right" as street photographers that they are in fact arguing for their "liberty" to take photos in public. Liberty is an absence of a duty to abstain from the action (http://www.austlii.edu.au/au/journals/MurUEJL/2005/9.html#Liberty_T). In this case, that means that the photographer doesn't have to abstain from taking a picture in public.

      To be clear, I am not at all referring to commercial photographer as that attracts criteria and rules of their own.

    I have approached the US company that produces these cards summarising the rights of photographers (see how I avoided the police there, Angus?) with the question of whether they intend to produce an Australian version. The response was "we're working on it" and "could you provide some useful links?" I won't be holding my breath.

    It may be interesting to note that two photographic industry bodies, the ACMP and the AIPP, are actively campaigning against increasing restrictions being placed on photographers. Also campaigning on the issue is Arts Freedom Australia. For your consideration, here's a pre-event press release regarding a Sydney rally: http://acmp.com.au/arts-freedom-photographers-rally/2010-08-29

    Most professional photographers, especially those whose work takes them into public spaces, are acutely aware that the legitimacy of their work is often held in suspicion by the public. This unfortunate situation has developed as a result of the increasing volume of uncontrolled releases of images that has arisen from the proliferation of camera-enabled phones, easy to use point-and-shoot cameras, and the ease of distribution that the internet has provided. Confusion is added to the mix when people believe there are universal laws applied to photographing in public places. This is simply not true. British, US and Australian controls over photography in public places is quite different.

    Paul, with regard to your statue/fountain issue, you may find there is also a question of intellectual property rights at play, which perhaps your client doesn't understand or doesn't want to explain to you. If the statues and fountains are unique works, the creators and/or owners of those works can exercise restrictions on photography and videography where those works are in a private space and may choose to do so in order to preserve the originality of their work. That said, your clients are quite right in wanting to protect themselves from public injury incurred by the actions of a photographer, however unlikely such an event may be.

    Dave, you are quite right in your suggestion of exercising the courtesy of asking and I expect most photographers who are serious about their work would do just that, because engaging a subject invariably leads to a better outcome. Further, photographers who really know what they are doing go one step further and have people sign a model release to allow them to use their photograph for commercial purposes. It's the CYA policy at work. That said, there still needs to be clear definitions for photographers about what they can do because once you have those definitions in place it also becomes clear what they can not do. One is as important as the other. Rights = definitions, IMHO.

    Grayda, your are quite correct. Shoot away. However, in the age of terrorism, activities in and around public utilities *are* going to be held in suspicion. Equally, in an age of litigation, photographic activities in and around areas where public and private spaces overlap will be keenly monitored by security guards because their job is to protect the interests of their clients. Personally speaking, I don't have an issue with that, and I can tell you from experience that approaching the management of a private operation will often lead to access not otherwise available. It's always better to ask, but within limitations the laws of this country allow photographers to shoot in public spaces because it is largely untenable to prevent them from doing so. Mr Nemeth's article does a great job of explaining this.

    With all that said, what rattles my cage with this issue is the unfortunate fallout for professional photographers doing their work in a manner they know to be legal yet being impeded by individuals who take it upon themselves to be defenders of privacy in a public place or by people who assume you are performing with nefarious intent simply because your lens is within proximity to minors.

    There is a great need for clarity on this issue. Sadly, along the path to clarity, there are an awful lot of people who have become paranoid.

    I came across a handy site written by someone with legal training on this topic - http://4020.net/words/photorights.php recently updated

    Also a handy little pdf summary for photographers to carry is here - http://www.forsterdigitalphoto.com/files/nswphotorights.pdf but the latest version is available on the 4020 website.

    I researched this because as a reasonably young man with young girls who do dance in leotards (I won't say which type of dance) I have been accused on several occasions of being a "dirty-old-man" taking videos and pics of my girls public performances by senior ladies well into their retirement.

    It didn't matter these were for use by their dance teachers for improvement, I was just accused, found guilty and asked to leave by the women running their own kangaroo courts at these events.

    I have taken to threatening these LOL's with legal action for slander, handed them a copy of the above pdf and this has stopped any more such attacks (so far) and over the years have become accepted in this dance community as just another proud Dad.

    We are moving out of our rented property in 3 weeks time. The land lord is selling the property in NSW.

    As we have yet to pack up all our belongings and personal items (wake boards, surfboards, snow boards, numerous computers, tools, TV, personal wall mounted pictures, cameras + equipment etc) and we would prefer that they do not appear on the the Internet with a photo of them next to an address.

    The agent said that all he has to give us is a verbal notice that he is arriving next Monday (today is Friday) to take photos and there is nothing we can do to prevent him.

    You would think that there would be protection of privacy for the renters. We have engagement party's and weddings out of town this weekend so we don't have time to play hide and seek.

    is the agent being truthful?

      Whilst it is private property, it's not your private property. I think you'll find the clause about access in your rental agreement.

    Even if the law is on your side, it still comes down to the people around you as well.

    I went to a party a few weeks ago near my house. Great party, lots of people, real atmosphere, and I got a bit trashed. So my trashed brain thinks "you know what would be really awesome, documenting this party for later, some cool rolling stone-esque black and whites would look really awesome".

    So I went home and grabbed my slr, thinking nothing of what I was doing. Anyway, long story short, VERY nasty scene when I got back to the party. Not quite a fist fight (no way I'm fighting, 1) I'm 32 years old and 2) I have my beautiful, breakable camera on me) but I was told in no uncertain terms by a very ugly girl who I had NO intentions of taking a photo of to go away. In much worse language. When I said "you don't need to be so rude" her knight in shining armour came in and it got much, much worse.

    And in hindsight, it was just the fact that I had an SLR. If I'd used my mobile phone (like all the smart people) there would've been no issue. But as soon as morons see an SLR, they get excited.

    Yes in hindsight I'm a dumbarse. But I was a bit drunk, and it seemed like a good idea at the time.

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