Is It Legal To Publish Photos Of People Without Their Permission?

Image: iStock

Most amateur photographers know it's perfectly legal to take photos of people in public places. What is less clear, is whether you're allowed to publish those photos against the express wishes of the subjects. Let's take a look at the legalities in Australia.

In Brisbane, at one of the city’s main intersections, a local photographer gets into position to take snaps of the city’s passing parade. In photographing people who make their way along city streets, he is of course following in the footsteps of famous artists such as Henri Cartier-Bresson. But according to some of those whose pictures have been taken, he is also invading their privacy and causing them acute embarrassment and distress.

A protest petition has been started by Change.org asking street photographers, and particularly the Brisbane photographer behind Oh-hi.info, to: “stop taking unwanted photos in Brisbane City”. Accompanying comments testify to many of his subjects feeling “violated and sickened”.

Meanwhile, in Britain, journalist Sophie Wilkinson felt “hurt and humiliated” last month when she discovered a photograph of herself eating a salad, posted along with other images taken on the London underground of women eating, on the Facebook group for Women Who Eat on Tubes.

Much comment blames new media for such intrusions, but they are not so novel. More than 100 years ago, one woman wrote in the Ladies Home Journal:

It is difficult for some people to understand that there are those who have a strong prejudice against being promiscuously “snapped at” through a camera … Amateur photographers have an idea that everything and everybody may be considered as fair game for their cameras, and that no-one should interpose objection.

The annoyance of street photography is almost as old as the camera itself, as is the question it raises of who should have rights in relation to photographs – those who take the pictures or those “snapped at”. Developments in online media have intensified such debates. Facebook, Instagram, Flickr and the blogosphere are festooned with photographs taken professionally or casually, published without their subjects’ knowledge or consent.

New York Times columnist Thomas Friedman may have declared that privacy is over, but technology’s erosion of privacy and our calls for its legal enforcement have always gone hand in hand.

Photo sharing platforms, such as Flickr, have redefined what ‘publishing’ means in the 21st century. [Image: Flickr]

In the late 19th century, the transformation of the camera from an expensive, complicated device into a relatively cheap, lightweight and easy to use consumer good led to a craze in street photography in the United States. With that came corresponding concerns about photographers publishing images of people (usually women) without their consent.

Copyright laws, still in force today, gave photographers extensive rights over their images and, by doing so, denied rights to those photographed. In 1890, two Harvard Law graduates, Louis Brandeis and Samuel Warren, responded to this new development by arguing for the legal recognition of a right to privacy.

They wrote:

For years, there has been a feeling that the law must afford some remedy for the unauthorised circulation of portraits of private persons … and the question of whether our law will recognise and protect the right to privacy … must soon come before our courts for consideration.

In 1900, a teenager whose photograph was taken surreptitiously and used without her consent in advertisements for flour took up Warren and Brandeis’ suggestion and brought a case in the New York Supreme Court, which led to the enactment of the first “privacy” laws in the United States. Now, more than a century later, the United Kingdom, Canada and New Zealand have also recognised a “right to privacy”. Australia is yet to do so.

Image: Michael Rawle

But even if a legal right to privacy were to be enacted in Australia it would not necessarily afford individuals the capacity to control the use of their images. A right to privacy has always been weighed against the competing right to freedom of expression and has been protected by courts only in certain circumstances.

Legal formulations of a right to privacy ask whether the individual had a “reasonable expectation of privacy” in the circumstances. Cases in the US, UK and New Zealand tell us that courts will rarely rule that an individual in a public place, such as on the streets of Brisbane or the London underground, has a “reasonable expectation of privacy”.

The few exceptions include cases in which photographs have disclosed sensitive or medical information or involved children. In 2004, British model Naomi Campbell won a case against Mirror Newspapers in the UK for publishing photographs of her outside a Narcotics Anonymous meeting.

In 2008, a UK Court of Appeal decided that JK Rowling’s infant son might have a reasonable expectation of privacy while sitting in his pram in a London street.

Privacy, as a concept and legal right, is notoriously slippery and contextual. If Australia recognises a new legal right to privacy, as reports of the Australian Law Reform Commission (2008), the New South Wales Law Reform Commission (2009), the Victorian Law Reform Commission (2010) and a Victoria Parliamentary Law Reform Committee Inquiry (2013) have recommended, future court cases will debate the limits of its power and determine when and how photographed individuals have rights in their images.

We can expect photographers and journalists will lobby vociferously against the introduction of such a right, as they did in the comparable jurisdictions of the US, UK, New Zealand and Canada, where such a right is now recognised.

Street photography has been a powerful art form for more than a century as the striking and poignant images produced by great photographers demonstrate. But it is surely timely for us to think again about people’s feelings of violation and humiliation when their images are circulated to millions online without their consent.

We need to begin an informed debate in Australia about the appropriate balance of legal rights in a photograph and to adjudicate the claims of those behind the camera against those whose image is captured and published without their consent.

The Conversation

Jessica Lake, Visiting Research Fellow, University of Melbourne

This article was originally published on The Conversation.


Comments

    I've been friends with the guy who takes those photos (oh-hi) for many years now (17 or so) and I think he cops too much shit from this. It's not the first time people have tried to force him to stop.
    i do understand the point of view of the people who make the complaints, but it's not like he's posting their personal details with the pictures or anything. They're just random, anonymous pictures, and he doesn't use them to make money. I'm sure if people actually asked nicely if he'd take the pictures down, instead of demanding it, he might even consider it, though he has no legal obligation to do so. I think the biggest problem is that people just make demands and prattle on about it being an invasion of their privacy instead of just quietly and politely asking if he would mind not posting their picture.
    These people are walking around in a public space, so really, there's no privacy to invade. These people are seen by all the other people walking about the city that same day, but they don't rant and rave about their privacy being invaded every time someone's eyes pass over them. There's no creepy motive behind his taking the pics. The images aren't being used in an unsavory manner, and it's not like his website is being visited by millions of people each day. i'm sure if they just move on with their lives, they'll forget about it eventually, and their picture will be buried so deep in his site that nobody will ever be likely to see it again any way.

      My step sister's ex-husband is a monster. If he and his brother found his children they would without a doubt murder the foster parents and the less said about what they'd to the children the better. Having people inadvertently document and publicly display where I live or work actually has the potential to cost lives. Thankfully he tried to rob a drug dealer but not everyone is lucky enough to have their problems take care of themselves.
      There are so many people out there who can have their lives ruined by this. We don't really think about it because it's such a long shot that a criminal would be looking at the website and see the arresting officer picking their kids up from school, but in that scenario the risk outweighs the reward. I don't think many artists would knowingly put that photo up.

      That said I don't think I have to go to that extreme of a case. My right to walk down the street without having my photo taken for someone's hobby is hurting anyone. I appreciate art and expression, and there's clearly no harmful intent in your example, but saying that going out in public is giving up my privacy is like saying wearing a short skirt is asking to have construction workers hoot and holler at you.
      I don't like having my picture taken at the best of times, and I have to walk down the street in order to get home from work. Usually I'm looking pretty bad because work is messy. I'm doing it because I have to, not because I'm consenting to have my picture taken.

      I'm a firm believer in opting in instead of out. People are clearly divided enough on this that a yes can't be assumed. I shouldn't have to ask to have a photo taken down, the photographer should have to ask before putting it up publically. If it's as easy as you make it sound that shouldn't be a problem.

      [I hope this doesn't come off too hostile. I'm just passionate about the subject.]

        nah man not too hostile at all. I'm sure if there was a situation like that, where a child's life was in danger, and they actually explained that to him, he wouldn't publish the pictures. He's not a monster. I'm pretty sure he would have a hard time dealing with the knowledge that his pictures lead to children being murdered. That's part of what I mean when I say that people just don't approach the situation in the right way. Most of the people who've objected in the past, just go up making demands and threats. If they calmly, and nicely explained the situation, and why it's important that they don't get published, I highly doubt he would go against their wishes, especially in a situation like the one you brought up.

        If I follow a person around and single them out - even in public - that would be wrong. If I try to catch them in any embarrassing situation, that would be dreadful.

        On the other hand, have you ever tried to take a photo of a well known landmark or tourist attraction that does NOT have people in it? It can be totally impossible to get a shot without people, and I'd usually prefer that if only I could have it.

        So I'm not allowed to take a photo in public, of a popular landmark, to add to my online photo album of my wonderful holiday/vacation, just because it has one or more persons in it?

        Sorry..... but surely you can see that THAT isn't right, either.

        So - until you can find a way to get rid of all the tourists for me, I'll be forced to put up with them inside my shot, at least most of the time.

        For those who say they are "in hiding" for some reason or other: If you are in such grave danger (which only applies to the tiniest fraction of a percentage of people walking around in public), you could be recognized anyway and should probably wear a disguise or find another way to have protection, or stay where you are super safe.

        I hate being in front of the camera, but I have never complained about accidentally being just one of those stray people in someone else's photo.
        Within the restraints of common decency, manners and empathy for others, I have a right to my special memories even if that does include some - UN-NAMED, UN-IDENTIFIED - strangers who "photo-bombed" my shots.

        Last edited 13/04/17 4:23 pm

    Welbot, you miss a fundamental aspect of this in that the persons photo is now a "permanent" record put on display for all to see, including those who may wish to ridicule those in the images. I think out of courtesy if a person is the focus of a photo and can reasonably be identified then permission should be asked. If a person is simply part of a more general scene/crowd or clearly is not the subject of the photo then no permission should be required. I know this gets very grey very quickly but ultimately nobody has any right whatsoever to potentially negatively affect the lives of others. Yes I am an amateur photographer and a member of a club so I'm not commenting purely from a subjects point of view. I do value my privacy and therefore would not take and publish photos of others without their permission and I expect the same courtesy in return.

      I haven't missed that aspect at all. I know exactly what you mean. I value my privacy too, but my point was that the photo's don't identify the people in any way unless you actually know the person. He doesn't "name" the pictures or anything. He doesn't even caption the images, so unless you actually know the person directly, the average person would never know who they are.
      And I agree, that if someone does object to having their picture put up there, they do/should have the right to ask for it not to be published, but the way in which people have tried to do it in the past has generally been very rude and even threatening towards him. Perhaps if they didn't just make demands and threats, and instead asked nicely, and explained why they're not comfortable with it, he might actually return the respect and grant their request.
      There's a lot of people who do actually like what he does, or simply don't care, but there's a number of people who don't, and of those, some just want to try and make trouble for him.

        Personally speaking, I'd be happy with a law that says not for profit photography in public is ok. But for profit requires the subjects consent.
        My opinion differs. Rights (to privacy in this case) of the many outweigh the rights of the few. ANY images that are consumed by a wider audience other than the video/photographer should require written consent, including the possibility of royalties if EVER published in any form by anyone.
        Permission is required before, not after.

        Welbot, there wouldn't be any demands or threats if people didn't feel threatened by the fact that someone took and posted their photo. It shouldn't be up to the people to ask for it to be taken down, it should be the photographer who asks for permission to post their photo in the first place. At the very core of all this, the question needs to be asked, why does the photographer feel a need to take and publish photos of others without the consent of the subject?? There is only one answer to that......for their own benefit because nobody else benefits which quite frankly is simply selfish. If everyone benefited then most people would probably consent but as it doesn't most people probably wouldn't and that's why photographers don't want to ask.....afraid of all the rejection and potential anger when face to face.

      This is such a muddy area it's understandable why the law is lagging behind.

      You could easily argue that if a person is doing something in public then they shouldn't be embarrassed if a photo is taken and used. After all you *know* you're in public and other people can see you (like the lady eating salad on a train). That unfortunately, still has a grey area, what if you're *discretely* getting a wedgie out of the crack of your butt?

      For that matter, snapping Naomie Campbell outside a drug clinic is wrong but not outside say a Mcdonalds? That seems like a flaw or a potential flaw in the law just waiting to be exploited.

      Personally speaking, I'd be happy with a law that says not for profit photography in public is ok. But for profit requires the subjects consent. In either case where the subject is the primary focus of the picture, if you're just a face in the crowd you're fair game. If someone is going to make money of my likeness then I should be able to consent for them to do so and potentially seek remuneration.

    I used to dance at African drumming gigs. I don't drink and am pedantic about my safety, choosing only venues that feel safe and with people that are friendly and not drunken. Because of the level of safety, I can just enjoy the vibe and lose myself in the dancing. People are friendly, and whilst men occasionally would hit on me, there were so many safe people around, others would look out for me, particularly as I became a regular and was well known, if only by sight. I was often complimented on my dancing, but it felt safe and friendly, rather than sleazy or opportunistic.

    Then one day a woman approached me, all friendly and grinning, and telling me she recognised me from the YouTube video. I was so shocked, and she explained that there was a video of me dancing. I was utterly horrified, as I knew nothing about it. It felt invasive and I never felt fully safe and relaxed again, as I felt like I had to pay attention to cameras or phones around me. It appeared the film had been up for several months and she couldn't give me exact details of where it was that I could even approach the relevant person to request it be taken down, not that that would undo all the viewings and potential copying that occurred beforehand.

    Once, at a festival, I was dancing and a man kept filming me. I kept trying to dance behind people so he couldn't see me, but I ended up giving up as he was just grinning and persistent. Why does his right overrule mine? Why can I not just go and dance without concern about being filmed?

    Another time, I was working out at the gym (female only) when another member next to me just started filming with her phone. I told her not to film me, and she just laughed and said she was showing a friend how good the gym was.

    In none of these circumstances was I scantily clad or dressed in a way that was seeking attention. I was not dancing in a seductive or provocative manner; I was simply enjoying myself. At the gym, I was simply working out hard, wearing leggings and a t-shirt. Not that attention-seeking behaviour should obliterate a right to privacy, but certainly one could not argue that my behaviour or attire was "asking for it".

    My point is, I should be able to dance unhindered and work out at the gym (for which I pay a substantial membership) without having my privacy invaded. I shouldn't have to be on the lookout for who's filming me. And how can I ask for images and films on display to be removed if I'm not even aware of them being taken?

    As someone who experienced sexual abuse as a child and adolescent, I am well acquainted with the feeling of violation and invasion. It took me years to get comfortable with my body and to own it again and to let myself relax enough to express myself and enjoy my body. And then these naifs unwittingly threaten my sense of safety and expression.

    All I ask is that you ask me before taking an image of me. And that without my express consent, you don't. You can look, you can even enjoy my dancing (as long as you're not being sleazy and ick)... but don't take permanent images of me.

Join the discussion!

Trending Stories Right Now