Is it unlawful for someone to take a photo of you without your permission?

Imagine this scenario. You’re at home and in the backyard with your children.  You notice a nearby neighbour begin to take photographs of your kids from over the fence.  Naturally you’re concerned so you call police to see what can be done but are shocked to hear what the police tell you.

That’s what happened to one Brisbane woman earlier this year. Her children were working in their backyard doing the lawns and the neighbours began taking photos of the boys.  This made the woman upset so she called the police and was told that it was legal, provided that no one was naked.

So was the advice given to them correct? The short answer is yes.  In Queensland, there are laws which make it illegal to take or distribute photos or videos of someone’s private parts or private activities without their consent.  It’s a criminal offence to take or distribute photos or videos of someone without their consent when the person is (1) in a private place, or (2) doing a private act in circumstances where they would reasonably expect privacy.  Private acts may include things like undressing, using the toilet, showering or bathing or having sex in a place where a person would reasonably expect privacy.

It’s also a criminal offence to take or distribute photos or videos of someone’s genital or anal region without their consent in circumstances where they would reasonably expect privacy. This applies even if their genitals or anal region are covered by underwear. For example, it’s illegal to use a mobile phone in a public place to take photos of women’s underwear under their skirts without their consent.

In the case of the neighbour or someone on the street taking a photograph, as long as they’re not physically trespassing on your land, there’s not really any law that would come into play there to prevent that. Because the children were in the backyard of their house arguably they were not in a ‘private place’ and it’s not illegal for people to take photos of your children in public places without your permission. The media may also take photos of children in public places without their parents’ permission. However, some organisations such as sporting clubs may have specific policies about taking photos or videos of children in their venues.

Can drones be used to take photos of my property?

For those of you who aren’t familiar with ‘drones’, they are small flying remote controlled devices that are often used for things like aerial photography or surveillance. They have been used for many years by the military but are now very common and accessible to any member of the public.  Think of a remote controlled car – only it can fly and can have attached to it high powered cameras for taking photos or recording videos.

Because they are very easy to obtain this raises a lot of concerns about them being used for unlawful purposes, such as taking photos of other people while that person is engaging in private activities. The same laws will apply as I have just discussed above.

However, is it lawful for a person to use a drone to take photos of someone else’s property only (that is, not actually taking a photo of another person)? The short answer is, it depends.  With private property you have rights not just to your land, but a certain amount of airspace and underground.  The rule is generally you own up into the land space enough that you can prevent people interfering with your reasonable enjoyment of your land.  So you don’t own all the way up into space to stop satellites or planes, but normally the situation in regular property law is a neighbour’s tree handing over your airspace on your land.  But if someone is flying a drone over your land and it’s interfering with your enjoyment and it’s in your airspace, that can still be a trespass.  So whether or not it is lawful for someone to use a drone to take photos of your property will depend upon things like how low the drone is flying, what time of the day or night it is etc.

For anyone who is not familiar with ‘Google Earth’ it is a program which allows you to find satellite images of just about every corner on earth. It’s an incredibly powerful tool which lets you see anything from your own backyard to the tops of the highest mountains.  These images were taken via satellites, lawfully, because the satellites couldn’t have been said to have interfered with anybody’s enjoyment of the airspace above their house.

With very quick increases in technology comes very quick increases in criminal offending utilising this technology. The law must therefore continually develop to keep up with these changes.

 

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