HG Alert: Image is everything… or is it? Five ways to protect individual privacy in photographic images - 19 Mar 2010

Lara Bingle’s decision to start legal proceedings against Brendan Fevola after he allegedly made a nude photo of her public once again raises the question of Australia’s privacy laws and what, if anything, a person can do to prevent photos of themselves being published.

Under Australian privacy law, it is quite possible (depending on the circumstances) that ordinary people would have little or no legal right to prevent the unauthorised use of their image. Although this issue has received a lot of attention in the media, the circumstances in which the law can intervene to prevent an individual’s photo being distributed without permission are very limited. Australian law relies on a patchwork of five legal causes of action to protect individual privacy, rather than a single right to individual privacy:

  1. A limited body of privacy law
  2. Copyright law
  3. Defamation law
  4. Breach of confidence law
  5. Passing off and/or misleading and deceptive conduct law

So far, the only Australian case law to formally recognise a right to personal privacy is a single decision of the Queensland District Court. However, the facts of that decision were aimed at preventing a continuous “stalking-like” situation, rather than the publication of a one-off photo. There is State and Federal legislation in place that deals with privacy, but that legislation deals with “informational privacy” for personal information collected by organisations, rather than “personal privacy”.

Copyright law will only step in to prevent the publication of a photo where a person owns the copyright to that photo. Typically, the person who takes the photograph will own the copyright in it, unless it is a commissioned photograph (such as someone commissioning a portrait for a wedding). Obviously, Lara Bingle could not argue that she commissioned Brendan Fevola to photograph her on his mobile phone, as he was not requested and/or paid to do so.

The law of defamation is also unlikely to prevent a photo being published unless the photo taken would bring the person into hatred, contempt or ridicule; cause people to shun or avoid that person; or lower the person in the estimation of others. Bingle may be able to argue that the publication of the naked photo has defamed her because it implies that she is the kind of person who would willingly allow others to take non-professional or non-artistic nude photos of her, which may lower others’ estimation of her.

The law relating to confidentiality may impose some restrictions on taking unauthorised photos, but only where these relate to highly personal matters, such as sexual relations between people. It can not prevent someone, for example, taking a photo of you in a shopping centre or taking a photo of your house.

Finally, if a person uses a photograph of another person with a commercially saleable reputation, such as a celebrity, without their permission, then that person may be liable for passing off or may be held to have breached the Trade Practices Act. The circumstances in which these causes of action apply are also fairly limited, especially for photographs of a sexual nature, such as Bingle’s photo. It would need to be shown that the public would conclude that Bingle had somehow given her endorsement to having the photo published, which is unlikely given that her expression in the photo is one of anger.

Despite these legal protections, it is arguable that Australian law still does not adequately protect an individual’s privacy, or prevent photographs of them being published without their consent. If Lara Bingle chooses to begin the legal action she has threatened against Brendan Fevola, it may once again provide the Courts with the opportunity to determine whether an individual’s right to privacy should exist and, if so, what the scope of that right should be.

For more information on Australia’s privacy laws, please contact HopgoodGanim’s Intellectual Property and Technology practice.