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Laws about photography in public

As so often happens, I write some good stuff when I email with friends (sometimes even strangers!). Today’s example is the below information about photography laws in Australia, which I thought I’d turn into a blog post as well.

There’s a lot of people in Australia that think it’s illegal to take photos of people in public, without their permission.  It’s actually not.

Photographing you in public is the same as being able to look at you in public.  If they can see you and you have no expectation of privacy, then they can take photos of you.  They can even publish your photo on the web or in books.  The only restriction is that they cannot use your photo to sell something without your permission.  They can use your photo in a model shoot without your permission, but they cannot use your photo in line with men’s aftershave, for example.  (It is also illegal to use photos of people taken in public in ways that can demean or defame those people.)

It’s all about ‘freedom from view’. If you can expect to be free from being viewed (eg. privacy), then you can expect to not be photographed. But if you can be viewed, you can be photographed.  This is the way of things.

It’s not illegal to take photos of people having sex in public (if they didn’t want to be viewed, then they’d do it in private), but it is illegal to take photos of children in ways that can be construed as child pornography.

It’s not illegal to take photos of people on private property if you’re on public property and you can view them. That’s why you see photos of celebrities in their backyards – it’s not illegal.

It is illegal to take unauthorised photos while on private property, or in places where people would expect to not be viewed (eg. public toilets, etc).

It’s illegal to take photos of defence installations, but I think they only enforce that if the defence installation is actually quite sensitive. For example, you can freely drive around the Australian Defence Force Academy in Canberra and take photos, and I’ve taken photos of other defence installations in Sydney that have no fences or gates.  I would imagine it’s enforced only on those installations that have gates, fences, checkpoints, and big signs saying that photography is illegal.

While police have the right to ask you for ID, you are not legally obliged to give it to them. The police’s rights to ask you for ID go only so far as they think you might be engaged in a crime, or could assist them in the investigation of a crime. For them to use their powers to prevent you from taking photos in a public place is an abuse of that power.  For them to arrest you for not providing ID if you are not engaged in a crime or assisting them with an investigation is not within their powers.

You can, of course, stand up for your rights – but you will have to wear the risk and cost of any negative consequences. If you do so in order to gain attention or make a point, you could risk falling under ‘public mischief’ laws.  If you’re asked, it’s often easier to provide your ID and explain why you’re taking photos, and even show them the photos you’re taking.  If they’ve been called out by public who don’t want you taking photos on public property, but you don’t want to move on, you could be arrested for ‘disturbing the peace’.

The laws on photography in public are also applicable in much the same way in the US, but that’s also where significant abuses of power are occurring. There’s epidemic proportions of police ‘punishing’ people for knowing their rights (with the use of tasers, assault, arrest and even deaths).  ‘Contempt of cop’ is a relatively new offence where people are assaulted by police simply for questioning or ignoring their quetionable or illegal commands.

Back to Australia…. In 2005 the Australian Attorney General wrote:

[…] for any society to function in a relatively free and open manner, there could not realistically be a requirement for all photographs to be taken with consent. If there were such restrictions, candid shots could never be taken, and the media would be severely constrained in the images they show us. Freedom of expression and artistic expression would undoubtedly be adversely affected … while there may be legitimate circumstances when recording images should be restricted, it would not be practical or desirable to obtain consent from every person all of the time, for example, for use in television news file footage.

That is why it’s unlikely that it will ever become illegal to take photographs of people in public without their permission.

If you want to get into photography, make sure you understand the laws relating to it. If you have objections or concerns about people taking photographs, make sure you understand the laws as well.  Just because you have an opinion about something, doesn’t make it illegal.

Thanks for reading! Please add your own thoughts below.

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