Clique Photo Club
Whether it is a selfie at the park, or part of that street photography project you're working on, taking photos in public is something we take for granted.
But few people actually understand their rights and legal responsibilities when snapping in a public area.
The issue made headlines last year when internationally recognised photographer Ken Duncan was confronted by rangers while taking photos in Sydney's Barangaroo Reserve.
So what are your rights?
Photographing people in a public space (for non-commercial uses)
As a general rule, taking photos of people and places in a public area does not require permission.
But there are some big legal caveats.
We have no right to individual privacy in Australian law – this probably comes as a surprise to a lot of readers, but there you have it.
Photographers, generally speaking, can freely photograph everyday situations, people and places, as long as they aren't breaking any other laws (such as trespassing).
Say you're out in the city working on that photo essay of yours. You can photograph people in a public area, and it's perfectly legal to do so.
Things become complicated when you're in private property, as you may be trespassing and you should leave when asked to do so by the landowner. This also applies to shopping centres, and other privately owned areas.
So even areas you may have thought were public, like a busy shopping centre, are actually not public areas. So photographers, beware!
What exactly is public space?
Public space consists of areas that are not privately owned or occupied, such as public parks and streets. Shopping malls are not public areas, they are owned by large (read potentially litigious) corporations.
You can, however, photograph private spaces from a public space, such as a home or homeowner from the footpath across the street. But you can't take images of the person inside their home, (like through a bedroom window). It would have to be if that homeowner was at their front door, at the gate or walking to their parked car on the street.
Photographing people for commercial uses
Photographing people for commercial use does require some documentation. This would include for an advertising campaign for example.
Usually getting a model release form signed by your subject/subjects covers this. Avoid taking images of people without their permission for commercial purposes; you need someone's authorisation to use their image to sell a product.
Listen to police, but know your rights
Well, if police find you to be a public nuisance, then they have every right to ask you to leave the area. Broadly speaking though, you are within your rights to take images. But it's usually wise to listen to police directions and act accordingly – (as a broad rule, even if you're within your rights, listen to the guy/girl with the gun).
You've also got to remember that professionals often need to document people for the sake of the public interest (as in covering important newsworthy events and issues).
Can I record police?
Generally, yes. It helps if you're polite about it (manners are not mandatory, but highly recommended).
You have a right to photograph and record interactions with police, as long as you do so in a public space or from a private space with permission from the homeowner.
Authorities recognise this and often have a policy to reflect that reality. One good example is the NSW Police media policy, which reads as follows on page 42:
"Members of the public have the right to take photographs of or film Police Officers, and incidents involving Police Officers, which are observable from a public space, or from a privately owned place with the consent of the owner/occupier."
So when can police delete or take your images/memory cards off you?
Well, only in special circumstances. Read on:
"Generally, Police Officers are not authorised to confiscate media tape/footage. Only if the actual taking of photographs or footage constitutes an offence, do Police have the power to arrest the person who committed the offence and the power to seize the tape, photographs and footage as evidence of the crime."
Limited circumstances could include anti-terrorism laws, or where the images relate to offensive conduct.
So who can't force me to delete images?
Unless you have broken laws in relation to taking your images, no one can legally force you to delete your images. That would include security guards or an angry bloke on the street. If they try to use force to delete your images, they are probably committing assault.
It may not be illegal, but…
Fellow photographers: Be courteous, and avoid confrontations with people you may have photographed. If someone asks you to delete an image you took of them on the street, perhaps just listen to them and delete it. Empathy can go a long way. After all, is it really worth the fuss?
Further information on your rights can be found on Australia's Arts Law website, which provides a handy pdf guidebook. It's worth reading!
The NSW Media Policy Rulebook can be found here.