Do our laws on photography in public spaces need to be changed?
When Amy walked her dog through Sydney’s Kings Cross one sunny afternoon, she never imagined she was being covertly filmed. A man approached her, persistently asking her out, and she gave him her number just to get away.
But days later, her phone buzzed with messages from friends and neighbours—it turned out the man had recorded the whole interaction through a hidden lens in his sunglasses and posted it online to more than a million followers.
Amy hadn’t consented. She didn’t even know.
This may sound like a scene from a dystopian TV series, but it was all too real. The story, originally reported by the ABC in March, has reignited a long-standing legal and ethical debate in Australia: is it okay to photograph people in public without their consent?
While the case involved video footage, the same principles apply to still photography. Whether you're a tourist snapping beachgoers at Bondi, or a professional street photographer capturing a candid moment in Melbourne’s laneways, the question remains: where do you draw the line between art, journalism, content creation—and basic human dignity?
In Australia, the current law is surprisingly clear, if a little unsettling for some: you generally have no legal right to control the use of your image taken in a public place.
This stems from the landmark 1937 High Court decision in Victoria Park Racing & Recreation Grounds Co Ltd v Taylor ([1937] HCA 45; 58 CLR 479), where Chief Justice Latham made it plain: there is no legal right to prevent someone from viewing or photographing what is visible from public or private property, as long as it does not involve trespass or nuisance.
In that case, Taylor, who built a platform on his property overlooking Victoria Park racecourse, broadcasted race details without entering the premises.
The High Court ruled that Victoria Park Racing had no proprietary rights over the spectacle of the races and could not restrict Taylor's actions.
That principle has, for the most part, stood the test of time.
So where does that leave someone like Amy?
Well, in most cases, if you’re out in public and someone takes a photograph of you, it’s may well be legal—even if it feels intrusive.
There’s no need for the photographer to ask permission or explain their intentions. But, as always, there are exceptions.
One of the clearest is when children are involved. While there’s no law specifically prohibiting photographing kids in public, authorities may intervene if it raises safety concerns, particularly near schools, playgrounds or sporting events.
As you would know, some organisations and venues adopt policies that prohibit such photography outright. And even where the law doesn’t prohibit it, common decency—and the potential for online backlash—should make anyone think twice.
Venue rules can also override the general freedom to photograph.
Gyms, swimming pools, art galleries, expos, and even some outdoor festivals have codes of conduct that prohibit photography or require consent.
These aren’t laws in themselves, but they form part of a contract you enter into when entering the space.
So while a photo taken in a public park may be legal, the same shot taken in a private gym might get you kicked out—or worse, sued for breach of conditions.
This is particularly relevant for photographers documenting events or expos. If you're shooting a model at a stand or an artist at their exhibition booth, it’s always wise to check with organisers and participants beforehand.
Respect is the baseline.
For instance, publishing a candid photo of someone in a locker room could imply they willingly posed for the image, potentially exposing them to ridicule or harm to their reputation.
This was seen in Ettingshausen v Australian Consolidated Press Ltd (1991), where a magazine published a shower photo of rugby player Andrew Ettingshausen, suggesting he had consented to its publication.
The court found this defamatory, as it subjected him to ridicule and damaged his standing in the community.
Similarly, if the photo includes confidential information, such as a whiteboard full of client names in the background of a meeting room, you may breach obligations of confidentiality. This is especially relevant for corporate or journalistic photographers.
Witness protection orders are another area where photographers must tread carefully.
In rare cases, photographing someone under state protection or involved in a sensitive legal proceeding could be a criminal offence if it risks exposing their identity. Courts can issue suppression orders, and breaking them carries serious consequences.
And then there's the special case of celebrities. Public figures have less expectation of privacy than ordinary citizens, but they still have rights—particularly if photos go on to be used for commercial purposes without permission.
Using a celebrity’s image to promote a product or imply endorsement can breach their personality rights, even if the photo was taken legally.
So where does that leave the everyday photographer?
A famous quote by the late American photographer Dorothea Lange springs to mind:
“The camera is an instrument that teaches people how to see without a camera.”
It reminds us that photography is not just about pointing and shooting—it’s about seeing with empathy.
Likewise, Robert Capa, known for his war photography, once said:
“If your pictures aren’t good enough, you’re not close enough.”
But today, we might add: if you're getting too close, check that you are not crossing a line.
Ultimately, this isn't just about law—it’s about common sense and courtesy. The law may give you the right to take a photograph, but that doesn't mean you always should. If someone looks uncomfortable, put the camera down. If you're sharing an image online, ask yourself: would I be okay with someone posting a similar photo of me?
Technology is evolving faster than our laws.
Covert camera lenses, facial recognition, AI-enhanced zoom—it’s easier than ever to capture someone's likeness, and harder than ever to control what happens next. In response, new legal developments are emerging.
In the future, the laws may allow individuals to sue for serious invasions of privacy, including the misuse of personal images but that is a case of wait and see.
In Amy’s case, NSW Police cited the Surveillance Devices Act 2007 (NSW), which prohibits recording private conversations without consent. But they ultimately chose not to pursue charges. The man left the country, the video remained online, and the damage was already done. The Crimes Act 1900 (NSW) may also be relevant as it regulates photographing or recording someone without their consent in private settings.
Amy’s experience raises questions that go beyond legal frameworks.
What happens when technology outpaces legislation?
What role should social media platforms play in taking down harmful content?
And how do we ensure that women, in particular, feel safe walking the streets without fearing that they are being watched, filmed—or turned into "content"?
At its heart, this is a cultural issue.
Laws can help, but they won’t fix everything.
What’s needed is a shift in mindset—one that values consent, respects boundaries, and acknowledges the human being behind the lens.
Because just as we admire a perfectly timed street photo or a beautifully lit candid portrait, we must also honour the dignity of the person in the frame.
Disclaimer: This article is for general information only and is not intended as legal advice. Every situation is different, and the law may change over time. If you have specific questions about copyright, AI, or your photography practice, you should seek advice from a qualified lawyer.
About the author: Sharon Givoni is a practising intellectual property and commercial lawyer in Australia and the author of the best-selling book Owning It: A Creative’s Guide to Copyright, Contracts and the Law. Her law firm, “Sharon Givoni Consulting”, advises photographers in all areas of the industry—from portrait and fashion to wedding, editorial, and wildlife photography.
Sharon also drafts custom terms and conditions for photographers. E info@iplegal.com.au Phone 0410 557 907
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