Everyone has a camera phone. Everyone has social media. And somewhere along the line the two became intertwined. It has never been easier to share what you, friends and others are doing with almost anyone on the planet. Obviously, if done maliciously, this can cause significant distress and harm to an unwilling muse and, consequently, the amateur paparazzo. Even when done with pure intentions, the more important question is whether or not taking and posting the photo is legal. The answer – except in commercial circumstances, which we won’t consider in this blog – depends on where the filming takes place and the circumstances, especially of the party being filmed.
Is it illegal for me to take this picture?
With some exceptions, it is not illegal to film someone in a public place and then post it or share it with friends. There is no consent required from that person if they are in a public area. However, should the subject ask you to stop filming or to remove it from the net, not doing so may constitute harassment.
What about if they are in private?
As long as the photographer is not trespassing (whether they be in a public place or private place with the owner’s permission), this is generally not illegal. That said, there have been some interesting decisions from the courts about the legality of capturing shots inside a private property from street level and the need to put restrictions on such conduct in the age of high powered telephoto lenses.
What can’t be filmed?
Section 91K of the Crimes Act 1900 (NSW) states that it is illegal to film someone engaged in a private act. Common sense should, and the law does, tell you that private acts include using a restroom, showering, a sexual act (of a kind not ordinarily done in public) or a situation where you would reasonably expect to be afforded privacy.
A compromising (non-private act) photo has been circulated of me. How can this be removed?
Legally, it is difficult to get an injunction or court order to have the photo removed and it is arguably more difficult to seek compensatory damages from the individual who has taken, published or republished the image. The unauthorised use of your photo would need to lower the public’s estimation of you or expose you to contempt or ridicule. Defamation claims may arise in relation to your reputation but, if you are a member of the general public, it is unlikely a court would find that you have been defamed.
In summary, if you are in the right place and not filming a private act, it is probably legal to take the photo. On the flip side, be careful of what you do in public or images you share with friends as it is often difficult to prevent these images being circulated. If you don’t want your Mum to see you doing something on social media, maybe reconsider doing it.
The above is not intended as legal advice. You should obtain legal advice in relation to your own specific circumstances.