I can still remember a specific instance, years ago, as I stood on the street outside a house party. I attempted to produce my camera phone to film as the police employed heavy-handed tactics on a party-goer. The police officer that I was attempting to photograph rushed towards me and demanded I stop at once. I complied and assumed from then on that I don’t own the right to photograph people in public spaces. To learn this is not the case has been both interesting and exciting.
As an ethnographer, it is rather useful to have a camera at one’s disposal. The photographic medium enables us to capture and store moments in time, with a simple click of a button. When practicing, one must ensure they are aware of the law surrounding photographic practice. Australian law states that people, in our society, do not have a right not to resist being photographed. Generally speaking, it is perfectly legal to take photos of people when you are in a public space. This also extends to buildings, sites, and government spaces. There are certain limitations, but in general, a person does not have a right to privacy whilst in a public space. The means a photographer can feel free to capture images at their discretion when in public.
Fast forward to last week and I was sitting in a lecture at Uni tweeting every passing thought that came to my head. I noticed a certain member of the audience had engaged with each tweet that I produced. Armed with my newly acquired knowledge of photographers’ rights I opened my camera app and snapped a photo of my follower, the Twitter-famous Renee Middlemost. You can see the photo pictured below.
I am within my rights to capture this image. I didn’t even need to ask for permission before doing so. As stated above, there are no publicity or personal rights in Australia that could prohibit me from taking this photo in a public university lecture theatre. The fact I have then proceeded to publish a person’s image on Twitter, however, can cause the photographer some legal grief. This is because there are areas of law in Australia, which can prohibit the unauthorized use of a person’s image. These laws include:Defamation;
Defamation law deals with injury to people’s reputation. In order to be defamatory, the image must lower the public estimation of the person portrayed, expose the person to hatred or ridicule, and or cause the person to be shunned or avoided
2. The Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) (ACL) and StateFair Trading Acts where applicable;
The Arts Law Centre of Australia states, “Sections 18 and 29 of the ACL and the equivalent sections of the State Fair Trading Acts prohibit misleading or deceiving commercial conduct.” For this law to be enforced it must be shown that the image can mislead or deceive the public.
3. The law of passing off;
The law of passing off is similar to the law of misleading and deceptive conduct. Is acts to protect a business against misappropriation of its reputation. To succeed in an action for passing off, the subject of an image must establish the subsistence of some reputation on their part, and that the person publishing the image is misrepresenting them in a way which may cause damage to their reputation.
As far as I know, none of the above laws apply in this instance, thus resulting in the lawful publication of the image. Publishing this image demonstrates my lawful ability to take images of people in public places so long as no harmful, unethical, or unlawful intent is at play. The rules are not as clear-cut as one might hope, however, resources are available to assist ethnographers and photographers to understand their rights and responsibilities. For instance, I recently stumbled upon a blog post by Taylor Bruno which provides a succinct and thought-provoking introduction into ethics of street photography.
The value of photographing Renee as she Tweets in a lecture theatre is that I can use the photograph as part of a public space ethnography. This method of ethnography is effective because it can assist me to form an understanding of how different people and social groups participate in public space. The image of Renee provides insights into media consumption habits within the university setting. For instance, the image shows that staff mobile phone use is present within the context of a University of Wollongong media lecture. Taking a photo allows me to efficiently document the practice of mobile phone use within the university setting. I may continue to photograph mobile phone use at the university in order to identify patterns and create an ethnography detailing this behavior.