No right not to be photographed - councils overreact

Others came to the defence of the women, saying that photographers invade their right to privacy. But, hold on - what right to privacy is this? Surely it must be conceded that appearing in a public place cancels any assumed right to privacy. How can one be private and public at the same time?

The non-existent issue of privacy

As it turns out, the assumption of a right to privacy is a legal furphy. Melbourne solicitor Sharon Theedar puts the assumption into perspective on the legal website, AustLII:

In Australia, there is no common law right to privacy. This was demonstrated in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor where the High Court held that the act of overlooking someone’s racecourse and broadcasting the results of the race did not constitute an infringement of legal rights. Presumably, the same result would have been reached had the races been photographed.

Local government bodies have the power to impose strict controls over conduct on the public land they control. Councils make money from fees imposed on commercial movie production, videoing and stills photography but do not interfere in amateur or documentary photography or in news production. The law is vague on council power to interfere in non-commercial photography in public places. Is it within their power to ban “unauthorised” photography, whatever that might be? How would councils “authorise” amateur photography on public land? How could they tell the difference between amateur or professional? And how would they control it?

Again, Nemeth puts these vagaries into a legal case context: “ … ‘unauthorised’ photography has been sanctioned in this country ever since the 1937 High Court decision in Victoria Park Racing v Taylor (1937) 58 CLR 479 (at p.496). In 2001 this was reaffirmed in ABC v Lenah (2001) HCA 63, where the High Court ruled that despite the passage of decades since Victoria Park, any concept of a 'Tort of invasion of privacy' still remains non-existent in this country. As Justice Dowd put it bluntly in R v Sotheren (2001) NSWSC 204 - ‘A person, in our society, does not have a right not to be photographed’.”

The issue of photographing children

It is important to note that there was no photographing of children in the Mackenzie case: children did not figure in the incident at all. They were introduced by the mayors and by unproven suspicions about male photographers at surf carnivals.

The Australian’s Greg Roberts alluded to the suspicion in January 2005 in reporting Deputy Mayor Newhouses’s proposed camera ban. “In NSW, community outrage over the suspicious photographing of children at beaches and surf carnivals has prompted a local government push to ban cameras from Bondi Beach”, he wrote, going on to quote Newhouse as saying, “It's the lifesavers who've been complaining about this problem, because these sorts of people have been heading down for the Nippers' surf carnivals and taking pictures of kids in their bathers, and that's just not on”.

The Surf Lifesaving Association of Australia is aware of the issue. Their February-March 2004 edition of E-news reported, “… a number of readers have commented on the article reprinted in a previous edition of E-news about a growing problem of people taking inappropriate photos during surfing carnivals”, and went on to say that NSW Police had clarified a remark by Detective Chief Inspector Bob Sullivan in The Sun-Herald which quoted him as saying it is illegal for people to take unauthorised video footage or still photographs of children. “The reality is that it is only illegal to take such footage if a person has previously been convicted of child offences”, reported E-News. “… Nevertheless, it’s important to be vigilant, and, if in doubt about someone taking photos of your children or members of your club, his advice is to ring the local police.”

This last piece of advice is a little alarmist and could well be an overreaction. With parents, tourists, amateurs and the media all likely to be taking photographs at a Nippers' surf carnival, the statement carries a number of vague terms that cry out for definition. What are “inappropriate photos”? What are “unauthorised video footage or still photographs of children”? Who authorises making images on public land? When should parents “have doubts about someone taking photographs …”?

The issue is potentially serious and advice on dealing with it needs to be serious and clear, too.

A strange reaction of the P&C

As the topic enjoyed new life in early 2005, the NSW Federation of Parents and Citizens' Associations (P&C) got in on the act when President Sharyn Brownlee suggested parents be required to obtain permission from schools to photograph or video their child at school events.

In a report on the P&C proposal, the Sydney Morning Herald quoted Brownlee on P&C policy, “ … a general rule: no dirty old man in a raincoat is able to take videos, or general photographing of children, at a school carnival, or otherwise".