Australian Press Council Submission to the Standing Committee of Attorneys-General in response to its discussion paper Unauthorised photographs on the Internet and ancillary privacy issues

13 October 2005

Executive Summary

The Australian Press Council has been invited to make a submission in response to the Standing Committee of Attorneys-General's discussion paper on issues related to the unauthorised publication of photographs of people taken in public places.

It is the Council's submission that no additional restrictions on the taking of photographs in public places should be enacted.

If, however, the Attorneys conclude that additional restrictions are required, the Council argues that any additional legislation should be minimal and address the specific concerns with the publication of inappropriate images on the Internet. This may be best achieved by specific amendments to existing pornography, sexual assault and stalking legislation.

An alternative approach, such as the enactment of specific legislation to address the concerns in the discussion paper, would be, in the Council's view, an overly restrictive method of addressing a specific problem. Were the Attorneys to determine that, nonetheless, such an approach was required, the Council would argue that a media exemption, such as the one contained in the federal Privacy Act, should be included in any such legislation.

If such legislation were enacted, whether such an exemption was included or not, the Council argues that specific defences, wider than just 'the public interest', should be included in the legislation to enable the recording of important and historical events and people.

No restriction required

The Press Council is of the view that, in normal circumstances, no restriction should be placed on the overt taking of photographs in public locations. Nor should a photographer taking photographs in public places be required to obtain the consent of subjects prior to recording their images.

Restrictions on the taking of photographs in public places would severely and unreasonably impede the ability of photographers to record events, including sporting and community activities. Any requirement for photographers to obtain permission from people who are photographed in public would be unworkable in practice, particularly where several people are photographed in a group or crowd, or the person's image is in the background, ancillary to the main image. Such a requirement would prevent the recording of images of spontaneous activity and emotion, of possibly corrupt or questionable activity or of scenes of conflict and tragedy that help shape the electorate's perception of matters of public interest and concern.

The publication of one of the most famous images in Australian history, that of a young man dancing down the street on VP Day, would have been impossible.

Equally, images that have no important historical connotation but do record the behaviour of the Australian people, and capture their sense of humour, would be unpublishable if permission requirements were to be enforced.

The image of a Magistrate sitting in a racetrack grandstand with a known criminal identity was an image taken in a public place without permission of the parties. It led to criminal charges and a major reform of the NSW court system.

Under such restrictions, the publication of the image of a naked girl (and other children) fleeing a napalm strike in Vietnam would raise serious questions for the press, even though such an image played a major role in shaping public opinion on Australia's role in the Vietnam conflict in the 1960s and 1970s, and the child's nudity made an important point about the effect on the civilian population of the chemical.

Amending existing laws to address the concern

The Council recognises that there have been recent instances where photographs of children and young people engaged in public activities have been published in inappropriate contexts. However, any mechanisms developed to address this problem should be narrowly cast so as to capture only those instances of publication which are threatening to the welfare of young people, or which are offensive.

Generally, the news media behave responsibly when they publish images of minors. The irresponsible and exploitive use of images referred to in SCAG's discussion paper is largely by individuals who have no link to journalism, nor the mainstream media. Essentially, these are "cowboy" operations, subject to none of the constraints on the mainstream print media.

In fact the use of children in images can be an important element in telling a story. This photo shows the intergenerational link integral to Anzac Day better than any words could. It is a valid use of an image of a child taken in a public place and used appropriately. Restriction on the use of such images would itself be irresponsible.

In the discussion paper, SCAG suggests that the problem might best be approached by focussing on the way in which a photograph is used, rather than the taking of the image itself. There is a range of possible strategies that would be consistent with that approach without placing undue restrictions upon the ability of the press to record and publish images.

If such an approach is thought appropriate, one solution to the problem of inappropriate use being made of images would be to amend existing laws regulating the publication of pornography so that in certain, limited circumstances they have application to images of people taken in public without their permission. For example, section 91H of the Crimes Act (NSW) makes it an offence to disseminate child pornography. "Child pornography" is defined in the section as being,

Material that depicts or describes, in a manner that would in all the circumstances cause offence to reasonable persons, a person under (or apparently under) the age of 16 years:

1. engaged in sexual activity, or
2. in a sexual context, or
3. as the victim of torture, cruelty or physical abuse (whether or not in a sexual context)

If the Attorneys decide on this approach, this definition could be expanded to include otherwise innocent images that are displayed in a context or manner that tends to sexualise them. This would then cause websites that publish photographs of children or schoolboys engaged in sporting activities to fall within the definition of child pornography if, for example, the site included links to sex sites or it was otherwise apparent that the website was in some way fetishistic.

Similarly, laws addressing problems such as sexual assault, sexual harassment and stalking could be adjusted to include prohibitions against "upskirting" and the taking of intimate or revealing photographs in change rooms or toilets.

If a new law were enacted ... a media exemption

The Press Council is of the view that new laws restricting the right to take photographs of people in public places are both unnecessary and unworkable. However, if such laws are introduced it is essential that an exemption be included for professional media photographers. An appropriate model for such an exemption would be that which was included in section 7B(4) of the Privacy Act 1988 (Cth):

Exempt acts and exempt practices of organisations ...

Journalism

(4) An act done, or practice engaged in, by a media organisation is exempt for the purposes of paragraph 7(1)(ee) if the act is done, or the practice is engaged in:

1. by the organisation in the course of journalism; and
2. at a time when the organisation is publicly committed to observe standards that:
   1. deal with privacy in the context of the activities of a media organisation (whether or not the standards also deal with other matters); and
   2. have been published in writing by the organisation or a person or body representing a class of media organisations.

The Press Council oversees a statement of principles and a set of privacy standards obligating publications to conduct their activities in an ethical manner. Principle three of the Council's Statement of Principles states:

Readers of publications are entitled to have news and comment presented to them honestly and fairly, and with respect for the privacy and sensibilities of individuals. However, the right to privacy should not prevent publication of matters of public record or obvious or significant public interest.

In addition, most media organisations have developed their own codes of conduct with explicit reference to reports involving children.

Any breach of the Principles, or of the Privacy Standards, may be the basis of a complaint to the Council. Publishers who refuse to comply with a set of standards are unable to claim the media exemption under the Privacy Act. Inappropriate use of photographs taken in public, such as the presentation of images of minors in a sexualised context, would be prima facie a breach of principle three and of the Council's Privacy Standards for the Print Media.

If no media exemption were included

If the legislation to restrict the photographing of people in public proceeds, notwithstanding the objections of the Press Council, it will be necessary to devise a defence to protect photographers responsibly taking photos in public. A reliance on 'the public interest', which is so often the basis of media defences, would be inadequate for such a defence. This is because many of the images that are reproduced in the media are not, strictly speaking, in the public interest. While the public interest might be used to defend the publication of the images above of the racetrack meeting or the girl in Vietnam, there is no obvious public interest in depicting a man dancing down the street or displays of humour among sporting crowds. Yet the "Dancing Man" image is both valuable and significant in that it illustrates the emotion associated with an important historical landmark, and the tennis crowd image tells its own story about the Australian character. If the only defence available were one based solely on the public interest, many other images would be unpublishable. Among the list of unpublishable images would be: a photograph of crowds on Bondi Beach in the heat of summer; images of fans cheering their football team at the Grand Final; and shoppers streaming through a busy shopping mall during post-Christmas sales. Even such an image as Max Dupain's iconic image of bathers on Bondi would fail a 'public interest' test. Yet such images are valuable in that they are important records of Australia's cultural history.

Any restriction on the recording images of people in public places without authorisation must take account of the intent of the photographer and the publisher. Before any offence can be established, the onus must be placed on the prosecutor to establish that the photographer or publisher had an intent to use the images in a manner that is offensive, either to the public or to the person whose image is being recorded, or which has a tendency to undermine the welfare of any minor depicted. Such a prima facie threshold enables the defence to argue that there was no intent to use the photographs in an offensive manner. If the defendant fails this threshold test, only then would the defence of 'public interest' become relevant. Where the publication of an image is held to be offensive but is nonetheless in the public interest, the photographer and publisher would have a viable defence.

Conclusion

The Australian Press Council urges the SCAG to approach the issue of regulating the photographing of images in public places with caution. No new restrictions on the taking of photographs in public places, or their publication, should be enacted. Although there is public concern over the problem of offensive or inappropriate use of such images by some individuals, an over-zealous response to this problem has great potential to impede the print media from recording and reproducing innocent images for wholly benign purposes, and would damage the rich culture that is promoted by the press in Australia.

For that reason, if some legislative regime is thought appropriate, there needs to be a media-specific exemption from such a regime for the press, and any such legislative response needs to have the minimal impact possible on the freedom of expression of citizens.

See also
Website material on privacy

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