Privacy law and photography

[Andy Haruk]

Is this allowed?

Great work Andy but I do wonder what the law has to say about us taking photos of people in private places and then posting them.

Dont try this at a public swimming pool


The reason why I raise this is two fold

1) Is is legal for photographers to do so
2) as a parent would I want my kids posted all over the place with out my permission, and what recourse do I have agains the photographer and the website owner

I do the photography for the high school I work at, this issue has been raised.

First of all, thank you for your comment and appreciation but you have puzzled me with your question

I was pretty sure that I didn't breach the law but after your question made an investigation. Initially I have tried to dig Privacy Act 1993, but unfortunately I don't have even a 3 month certificate in law and understood almost nothing. I could only find a definition of a public place:

Public place means a place that, at any material time, is open to or is being used by the public, whether free or on payment of a charge, and whether any owner or occupier of the place is lawfully entitled to exclude or eject any person from that place; and includes any aircraft, hovercraft, ship or ferry or other vessel, train, or vehicle carrying or available to carry passengers for reward

So, The Rainbow's End is a public place according the definition.
All other sources are indirect ones but created by law authorities either in NZ or other countries (Oz).
On the NetSafe site I have found an article "Privacy and Mobile Phone Cameras". There are some interesting places in it:

The Privacy Act only applies to “personal information�... So, the requirements of the Privacy Act would not apply where someone is photographing or filming a person in a way that means they are not identifiable. It is unlikely to be a collection of “personal information� under the Privacy Act.

The effect of section 56 is that a commercial photographer taking photos of a client in a studio would be bound by the privacy principles, but a parent taking photographs of their child at a school sports day would not. The personal trainer photographing others at the gym would be covered by the privacy principles, but the gym member doing the same would not be.

So if i as a member of public take photos in a public swimming pool i don't breach a Privacy Act.
In New Zealand Press Council website there is a case about taking photos in public place (Queen St in Auckland) and publishing it in newspaper. The case is quite complex but regarding taking photos in public place there is a court resolution:

Photographs taken in public places are able to be used without gaining the consent of their subject.

What about children? Is photograph of children special case? There is "Children, Young Persons and Their Families Act 1989". It's also to hard to dig so I have satisfied by explanation based on Australian Law (I'm pretty sure that NZ law is almost the same as AU law).
Ther is very useful website "NSW Photo rights":

children are not afforded unique legislative protection when it comes to photographs, consent, privacy or defamation. As with adults you need a signed release for commercial use, but for non-commercial images — nothing.

And Google offered me a PDF document which is actually based on information of "NSW Photo Rights" web site but lives on NZ site of Joshua Corporation with some interesting paragraphs:

Q: Isn’t it Illegal to publish a person’s photo on a website or other media without their consent?
A:Only in Quebec or France. In every other country, including Australia, publication is fully legal, provided the following criteria are met:
(1) The pictures aren't defamatory;
(2) They aren't indecent, offensive or otherwise demean the people in them or;
(3) They aren't being used for a "commercial purpose"

Q: Can I stop people from taking photos of my children?
A: Only if the images are indecent or offensive. Otherwise children are not afforded any special protection under current law.
What can you do? Simply ask the photographer to stop. If they don't, then ask someone in authority (eg. a surf-lifesaver) to intervene.

After that I was totally satisfied that I haven't breach NZ law:
- The Rainbow's End is a public place
- Photos are not defamatory or offensive
- I don't use them for a "commercial purpose"
- No one asked me to stop taking pictures.

If parents of the kids or someone else who has appropriate rights ask me to remove these photos from my web site and this forum I will do that immediatly. Otherwise it's legal

As a commercial photograph you was asked about publishing photos and that is legal as well. But that's another case

Sorry guys for this huge and dry post. But I think it relates to all of us

[steve7680768]

Thank you for your response...
I will try to sort it out....

[BlueRose]

"By the Federal Trade Practices Act 1974, photographs
cannot be used for "commercial purposes" without the
written consent of people in them.
If the photographer / publisher doesn't have your
permission (usually in the form of a signed release),
then they are in breach of TPA legislation and are liable
for statutory fines. Contact the ACCC to take the
matter further (see end of article).
What is "commercial use"? In a photo context it does
not mean the sale of a picture, but rather the use of a
person's likeness to endorse a product or service, or to
entice others to buy it."

So does that mean you cannot use images of people you have taken photos of - say on the front page of your website or perhaps on business cards without them signing a model release?

[whittyp]

It would if you lived in whatever jurisdiction that law relates to but not NZ. Here you are allowed to take photos in the street and use then without the need for model release forms.

[LynEve]

Interesting subject.

A little more reading

Photography in Public Places and The Privacy of The Individual
http://www.otago.ac.nz/law/oylr/2007/Knewstubb.pdf

The Clendons Guide to NZ Law Relating to Photography
http://clendons.co.nz/newsite/index....in-new-zealand

Unlawful Photography in Public Places: the New Zealand Position
http://www.austlii.edu.au/au/journals/PLPR/2006/2.html

[randomguy]

sorry for dredging up this topic, but hard to get a clear answer from anyone other than a paid lawyer.

i ask because i know someone who asked their friend to take photos at their wedding, then when said person posted up images on the web as part of thier portfolio, the couple then asked for the photos to not be displayed. of course this was informal so no contracts were signed.

who has the rights here in this case?

i'm guessing a formal contract between photographer and subject with the clause 'all rights reserved by photographer to use as they see fit' can be intepreted as a 'signed release'

[rjd]

Pretty sure that unless the photog was working under a contract and commision the photos remain the property of the photog by default and they can do what they like with them.

[LynEve]

sorry for dredging up this topic, but hard to get a clear answer from anyone other than a paid lawyer.

i ask because i know someone who asked their friend to take photos at their wedding, then when said person posted up images on the web as part of thier portfolio, the couple then asked for the photos to not be displayed. of course this was informal so no contracts were signed.

who has the rights here in this case?

i'm guessing a formal contract between photographer and subject with the clause 'all rights reserved by photographer to use as they see fit' can be intepreted as a 'signed release'

I think post #3 answers this question If the images were used as part of the photographers portfolio then they were used to "endorse a product or service"
There could be many reasons the couple prefer not to have them displayed. Perhaps if the photographer has simply asked for permission from the subjects they would have agreed, especially considering they are friends.
Disregarding the legalities my opinion is that it would have been purely good manners to seek permission to display someone's wedding photos and to respect their decision should they not agree.

There are those who would be delighted to have their special day publicly displayed and others who prefer to keep it private. The photographer may legally 'own' the images but a friendship is not worth losing over them.

[randomguy]

yeah i see your point there. i read that piece about moral obligations yadiya.

the real reason it became an issue was that the bride's sister also took photos and published those.

so i'm guessing this has to do more with making the sister (who took photos) look good than actually taking offence with the photos.

what struck me as strange was they were asked to do the 'backup' photogrpahy since the bride was concerned that the sister might not do a good job.

i guess this is where you draw the line between business and friendship!

[flashpoint]

well.. Rainbows End is not a "public place" ...its privatley owned land that they let you walk into

Just like a shopping mall, try handing out flyers or taking pictures in somewhere like Botany Downs and you will be aproached by security and asked to move on.. if you dont you can be removed. ...thats from personl experience...

[Photocol]

well.. Rainbows End is not a "public place" ...its privatley owned land that they let you walk into

Just like a shopping mall, try handing out flyers or taking pictures in somewhere like Botany Downs and you will be aproached by security and asked to move on.. if you dont you can be removed. ...thats from personl experience...

Our camera club got permission to have a night shoot at Botany Downs, was a great night until a lot of guards turned up. Boy they like to show the authority... the Shopping center management forgot to tell the guards we were walking around there!
If someone owns the land then they can tell you were to go? If they build on public land then they may not legally be able to stop you, but who's going to spend all the money on going to court to find out

[Russ]

Public place means a place that, at any material time, is open to or is being used by the public, whether free or on payment of a charge, and whether any owner or occupier of the place is lawfully entitled to exclude or eject any person from that place; and includes any aircraft, hovercraft, ship or ferry or other vessel, train, or vehicle carrying or available to carry passengers for reward

Rainbow's End IS a public place, it's just privately owned, so they can make their own rules. But if they haven't made their own rules the default situation is as per any other public place.

[LynEve]

Had a spare few minutes at work today so read up the copyright law book.

To clarify - or confuse

The Copyright Act 1994
Part 1 (COP 21) Ownership of Copyright

First Ownership of Copyright
(1) The person who is the author of a work is the first owner of any copyright in the work.


............. OR


(3) where -

(a) A person commissions and pays or agrees to pay for, the taking of a photograph or the making of a computer program, painting, drawing, diagram, map, chart, plan, engraving, model, sculpture, film or sound recording and

(b) The work is made in pursuance of that commission

-that person is the first owner of any copyright in the work.

further . . .

Part 1 (COP36) . . (about infringement)

Copyright in a work is infringed by a person who, in NZ, other than pursuant to a copyright licence

if . . .
(d) In the course of a business exhibits in public or distributes an object that is, and that person knows or has reason to believe is, an infringing copy of the work.

[Russ]

Issue 16 of NZphotographer e-zine covers copyright.

Download here:
http://app1.mmpathway.com/espire/lis...ROAVUABw%3D%3D

Sign up for the mag here
http://www.nzphotographer.co.nz/

[IronFilm]

Cheers for this awesome thread, I've often come across legalities when reading sites but it is irrelevant to NZ, is good to hear some NZ specific advice.

So basically as a non-commercial photographer in a place where any normal member of the public can go (such as shopping center or a park) I can take whatever I like unless a person says otherwise?

One key question I have remaining.... what if it is for commercial purposes??

Our camera club got permission to have a night shoot at Botany Downs, was a great night until a lot of guards turned up. Boy they like to show the authority... the Shopping center management forgot to tell the guards we were walking around there!

It is incredible how often security cards will show up and try to cause trouble... guess they're just bored and need to "do something"?? :-s

[MikeW]

As far as locations go, you can take all you like in a public place like a public park, but you'd need permission to shoot on private property like a shopping mall.

You are free to shoot pictures of people in public places (where they have no expectation of privacy) and use them for personal use or to sell as "art". But to use for commercial purposes you would need their permission.

Photos of property, even taken in public places may need permission to use for commercial purposes if that property (a building or a car for example) is distinctive and recognisable.

The privacy and the commercial side of this are two different things really. The privacy aspect is that while you can't peek over my fence and take pictures of me and my family, if I'm out in a public place I can't reasonably expect a photographer to put away his camera because I might be included in some shots he's taking, whether I like it or not.

The commercial aspect is different - you're selling something, and I may not like my image being associated with that product - whether it's my face or my property that's easily identified as mine.

[rjd]

As far as locations go, you can take all you like in a public place like a public park, but you'd need permission to shoot on private property like a shopping mall.

You are free to shoot pictures of people in public places (where they have no expectation of privacy) and use them for personal use or to sell as "art". But to use for commercial purposes you would need their permission.

A mall is most certainly a public place.

[MikeW]

A mall is public from the point of view that a shopper can't expect to have any privacy, but it's private property and if Westfields or whoever ask you to stop taking pictures or leave they can. As opposed to public property like a park or street, where even if a cop were to ask you to stop you'd be within your rights to keep shooting.

[IronFilm]

I think with a mall you are completely free to shoot in it but IF you get asked by the mall management to stop then you have to stop, unlike say if you were shooting while walking along the street where a person could say "stop" to you but you can still carry on and just ignore them (assuming you're not harassing them personally or whatever).

[Lia]

This is the link Doug posted for me when i asked a similar question http://www.police.govt.nz/faq/items/23297

[IronFilm]

We can ignore the "should not" part of that link :P :P
(as if it is actually illegal the police wouldn't say "should not", it would be phrased instead "must not"? But still good guidelines to follow anyway, as best not to annoy people & have to deal with trouble for no reason at all)

[Georgia Schofield]

Hi there,
I've recently been asked by a client to go out to the streets, bars and cafes of a particular suburb to take candid shots of people having fun to show off how nice and cool this suburb is. I've used a mix of techniques with this - walking up and taking the shot then quickly moving on, asking if they're okay with it and tell them to keep on acting naturally as they were before (only worked well once), shooting from the hip and generally pretending I'm invisible.
One of my colleagues on this project decided she would drop out last minute due to legal issues and feeling uncomfortable with it which prompted me into searching further into the issues that surround street photography.
We are currently not using model-release forms and only some people know their photo is being taken, I am being paid for this job and the photos will be displayed in a local bar.
I understand that this comes under "commercial use"... BUT! How do Newspapers and other media outlets get away with it? e.g. taking photos of a street protest or a beggar, or maybe some one if photographing an event such as a concert or market day in a public place and takes photos of the crowd. I mean... Where the hell are you meant to draw the line?
What do you guys think about that? I've got to go meet my client soon and reassess the job, but I'm still unsure of the legalities.

[whittyp]

Georgia, the newspaper will get around it because they will say they are documenting a public event rather than simply doing this to generate trade which is likely to be the case here. You can not use a person image to intimate that they are promoting a product. While there is nothing stopping you legally the bar may find itself in a moral dilemma if a person objects. A similar situation occurred recently where a McDonalds included an image of a mountain biker on the side of their building. The subject did not consent to the image being used and demanded it be removed as it turned out hey have been a vegan for 30 years and didn't want to be associated with a McDonalds. The banner was taken down but it must have cost quite a bit to replace.

[meh]

read an interesting story from Ausy: http://www.facebook.com/permalink.ph...14370208626221

hard to say if it's april 1 there or not though...

[stic]

Bugga!

What happens if the photographer gets a bit drunk, takes a selfie and then, in the cold morning light, is sickened by the image...can he sue himself for his own lewd and/or inappropriate or illegal actions?