From Candid to Controversial – Dissecting the Relationship Between Street Photography and the Right to Privacy in an Australian Context

October 28, 2024

From Candid to Controversial – Dissecting the Relationship Between Street Photography and the Right to Privacy in an Australian Context

“Photography is a moment of embarrassment and a lifetime of pleasure” – Robert Doisneau

A good photo is like a good friend – warm, inviting, intimate. A good photo brings out the very best in you and your surroundings – adding, emphasizing, enhancing. Most importantly, a good photo, the best photos, leave you wanting more.

Street photography, conceived in the grit of 1820’s Paris, describes a style of photography premised on two fundamental notions – capturing the moment, and capturing the ordinary. Street photographers seek to convey the world exactly for what it is, presenting a raw, authentic portrayal of the human experience. The ability to create ‘something from nothing’, and turn the ordinary into the extraordinary, preserves street photography as an ever-present, ever-relevant artform.

Hailed as a pioneer of the photojournalistic world, and forever a personal idol, Robert Doisneau remains to this day one of the most prolific street photographers to ever shoot. Showcasing the eccentricities of a 1930’s Parisian world, Doisneau was remarked for his compelling depictions of young love and the realities of ordinary European life. The essence of Doisneau’s work – capturing the subtleties of our day-to-day lives – is a persistent, engrossing artform, for to observe the human experience is to relate to it.

However, despite the continued relevance of street photography in a contemporary artistic landscape, it is not without its controversies. Unsurprisingly, the unsolicited photography of individuals without their consent or approval has, and continues to do so, generated robust discourse about individuals’ right to privacy, and whether art forms such as street photography qualify as violations of this potential right.

While this article in no way seeks to provide a comprehensive guide on the law of personal privacy, its aim is to examine landmark Australian case law and legislative provisions relating to personal image rights, illustrating a clearer picture of how street photography interacts with the law.

In Australia, the current ‘state of play’ vis a vis the right to privacy can best be described as a loosely-bound patchwork of case law, statutory provisions and international conventions. This absence of clarity in where the right, if such even exists, exactly lies makes a separate examination of each source of law most apt.

Case Law

Strictly speaking, there exists no general right to privacy at Australian common law. As early as 1937, in the seminal Victoria Park Racing and Recreation Grounds Co v Taylor judgment, the vague notion of an enforceable right to privacy was swiftly rejected. Despite revisiting the issue in discernibly greater depth, and presenting a willingness to develop a body of law capable of recognising and enforcing the law of privacy, ABC v Lenah Game Meats (‘ABC’) similarly failed to crystallize any plaintiff-friendly rights. Of the various judgments delivered, the obiter comments of Gleeson CJ provide perhaps the most relevant opinions regarding a right to privacy when capturing photographic images of others – ‘a photographic image, illegally or improperly or surreptitiously obtained, where what is depicted is private, may constitute confidential information’. His Honour suggested that, in such circumstances, a defendant photographer could be restricted by the principle of good faith, possessing an equitable obligation of confidentiality not to publish such private material.

Notwithstanding Gleeson CJ’s insightful obiter, what we consider a ‘private act’ differs from community to community, and is seldom of critical importance to street photographers. The very crux of street photography is the documentation of the open, public world, with a particular focus on the undertakings of everyday life. Thus, despite the utility in Gleeson CJ’s approach, it would appear fairly redundant in its application to the street photography artform.

A similarly relevant case, heard in the England and Wales Court of Appeal, demonstrating the complexities involved in establishing a right to oppose unconsented photographs from others, was in Douglas and Ors v Hello Ltd (‘Douglas’). Concerning the sale of unauthorised wedding photographs to a celebrity magazine, and the defendant’s challenge to an interlocutory injunction preventing their publication, the Court’s three judgments were nuanced and varied.

While their Honours were fairly unanimous in recognising a legitimate cause of action for breach of confidence as it related to private information, they were reluctant to extend this protection to a concrete right to privacy for concerned plaintiffs. Rather, as most explicitly expressed by Sedley LJ, any ‘qualified right’ of privacy simply amounted to rights available under an action for breach of confidence.

While there exists a litany of similar judgments ripe for dissection, ABC and Douglas provide useful illustrations of Australian/UK case law’s approach to recognising a right of privacy exercisable by individuals concerned with the dissemination of their personal image. From the two cases examined, and distilled from many more, it would appear that the liberty at which street photographers may capture their subjects curtails at the interaction with the private sphere. Equitable actions for breach of confidence may, at this point, serve to prevent a defendant’s publication of such work, although such scenarios are, in my view, rarely encountered.

Statutory Provisions

Despite the scant protection offered by Australian common law when it comes to enforcing a right against being publicly photographed, the avenues available for redress are, somewhat, buttressed by legislative frameworks, both Federal and State.

The principal statute regulating the collection, disclosure and use of personal information, across a range of different subject areas, is the Privacy Act 1988 (Cth) (‘Privacy Act’). Though comprehensive in its scope and operation, the Privacy Act fundamentally pertains to Federal and private sector organizations, Commonwealth agencies and small businesses. As such, the Privacy Act focuses primarily on information privacy as opposed to general personal privacy, and is thereby essentially futile for our purposes.

At a State and Territory level, each of Australia’s various jurisdictions maintain and enforce similarly-constructed information privacy statutes. In Tasmania, for example, the Personal Information Protection Act 2004 (Tas) (‘Protection Act’) is designed to ‘regulate the collection, maintenance, use, correction and disclosure of personal information relating to individuals’. However, much to the aspiring photographer’s glee, the Protection Act in one fell swoop excludes public information from falling within its ambit (see Section 8). How ‘public’ is to be interpreted is not comprehensively defined within the Protection Act itself, but suffice to say that street photography would ordinarily fit into the term’s meaning.

Given an examination of both statutes, and with others in mind, it would appear that Australia’s Federal and State legislative frameworks, regarding the protection of privacy, do little to supplement its common law counterpart, at least as it relates to what degree of public photography is permissible.

International Conventions

It is important to emphasise that, despite Australia’s blasé approach to personal image rights protection, the right to privacy remains a fundamental human right. Specifically, Article 17 of the International Covenant on Civil and Political Rights (‘ICCPR’) maintains that ‘no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful on his honour and reputation’.

Pursuant to the fact Australia falls into the category of a ‘dualist’ nation, whereby ratified treaties do not automatically translate into enforceable domestic law, its commitment to the ICCPR on 13 August 1980 was not, in and of itself, a catalyst for uniform legal protection domestically. The same can be said regarding Australia’s signature to the Universal Declaration of Human Rights (‘UDHR’), which enshrines the right to privacy in almost identical terms (Article 12).

Australia has unequivocally evinced a commitment to essential human rights protection through its ratification of the ICCPR and UDHR, and many more international conventions, yet in some respects, such as the protection of right to privacy, fails to administer and enforce a dependable body of law. The loose cluster of Federal and State laws, paired incongruously with sporadic case law decisions, are as useful to a prospective litigant, concerned with their personal image rights, as a wet match in a dark cave.

Concluding Remarks – The Moral Element

Having discussed the topic with a friend before writing this article – an accomplished street photographer himself – it became apparent that, among those who delve in the artform, there exists a strong code of unwritten, yet well adhered to, set of rules. Photography, like many other avenues of self-expression, exhibits moral aspects – notions of what is right and wrong. In the world of a street photographer, although often stretched to its proverbial limits, the question of what is ‘moral’ to capture involves an assessment, often on the fly, of whether to do so would be considered right or wrong. While the goal posts are fundamentally different for each and every artist, my friend and I could not help but agree that, in the world of our camera-crazy, film-fanatic comrades, it is often far more about the setting than the subject, the place than the person.

The current state of Australian rights-to-privacy protection is, well, flimsy. Focusing specifically on the sphere of personal image rights, an individual’s ability to hamper photographs taken of them in a public environment are slight. Be that as it may, and to reemphasise my concluding point, the need to introduce radical legal reform is, in my view, an unnecessary policy approach, in light of the strong ‘rules of play’ acknowledged and adhered to by the street photography community.