If you’ve been on TikTok in the last couple of weeks, and you made it past the kitten videos, there’s a good chance that you’ve seen the reaction of the man in Melbourne when somebody else paid for his groceries. Or maybe the response of the woman who was handed flowers by a total stranger. What those people really had in common wasn’t random acts of kindness, but their surprise and discomfort when they learned that their images had been distributed, without their consent, to millions of TikTok users.
The Australian law on filming, consent and privacy is continuing to evolve but – as the law usually does – it lags behind the evolution of technology. It wasn’t designed for a world in which most people have phones with cameras, and easy access to platforms that distribute images around the world in seconds. Everyone holding a phone with a camera is now, potentially, an international publisher; everyone else is a potential meme. Yet most of the laws that govern this space were designed to cover old media, like photographers working with or for print publications.
Essentially, anyone who is in a public space in Australia may be filmed by anyone else, without any requirement for consent, as long as the filming is done for the private use and enjoyment of the photographer – which includes using the images on social media. There are, of course, an increasing number of exceptions to that general rule. A very common one is that sometimes the occupier of a space to which members of the public are admitted is able to impose conditions on entry to that space, including a condition barring photography. So the management of a restaurant or theatre might make it a condition of entry that there be no photography on the premises. Breaching that condition isn’t a crime, but is likely to result in the loss of permission to be on the premises.
Additionally, the law in New South Wales has been changed relatively recently to prohibit photography in certain circumstances in which people share space with an expectation of privacy. It’s a crime to photograph a person who is engaged in a “private act”, and a private act includes showering or bathing, using a toilet, changing clothes or engaging in a sexual act that is not usually performed in public. A person who films another person in those circumstances, and does so for the purpose of sexual gratification or arousal, may breach sections 91J and 91K of the Crimes Act. Section 91L makes it an offence to “film another person’s private parts” for the purposes of sexual gratification. And it’s also an offence to distribute material filmed in this illegal manner.
Those sections are helpful so far as they go, providing protection for the privacy of people who might be, for example, using a public changing room at a beach. But they don’t extend to members of the public who just happen to be going about their own business when someone decides that they’d make an entertaining post on TikTok or Instagram. There are, obviously, good and practical reasons why Australian law strikes this balance; otherwise, every tourist who takes a photo of the Sydney Opera House might need to seek the consent of whoever happens to wander into shot. An old maxim of English law insists that “no one trespasses with the eye”, and Australian law begins with the presumption that anyone who’s in a public space is happy to be seen and, by extension, filmed. But the old presumptions don’t hold up as well as they used to. For example, posting images on social media is generally presumed to be personal use, and not a commercial activity, a distinction that seems unrealistic in the age of the “influencer”. And many popular videos (including, one would strongly suspect, Groceries Man and Flower Woman) aren’t merely observational, but were situations contrived to elicit a reaction.
There are other possible approaches, and one of the most interesting is the law of France. Under French law, each person has their own droit d’image – the right to own and control their own image, which can’t be used by another person without consent. A person who is in a public space is usually taken to consent to being photographed – but can’t be taken to have consented to being the primary subject of a photograph, and is entitled to refuse consent to the publication of the photograph. And photographs or films are not permitted violate a person’s privacy rights by disclosing information that the subject may not wish to have disclosed. If you want to pay for a Frenchman’s groceries and film his reaction, you need to ask him first – and even if he agrees, you also have to ask his consent to post the result.
The French approach is, obviously, very different in emphasis: there is no Australian law equivalent of droit d’image, and the Australian Privacy Principles, which are the basis of the privacy protections afforded by the Privacy Act 1988, deal with personal information rather than a right to a personal image. What seems clear, however, is that as technology continues to advance rapidly, the law in Australia will be challenged to keep pace with the manner in which the many and various social media outlets impact upon the lives of people who would prefer to remain bystanders.