Privacy (Online)

The right to personal privacy is a basic human right that is protected by the United Nations Convention on the Rights of the Child. There are many ways our personal privacy can be invaded—our private messages or photos may be revealed, our secrets may be exposed, or details about our relationships may be released to the public. Luckily, there are ways to reduce the risk of that happening, and ways to deal with it if it has already happened.

Why is privacy important?

Privacy issues arise almost every day, for example when you’re using Facebook, shopping or banking online, receiving unwanted calls from telemarketers, or sharing secrets with your friends.

It’s important to protect your own personal information and the personal information of others. If your personal information falls into the wrong hands, it can pose a safety risk.

For example, sharing your location, schedule or other information about your activities online can allow people to follow or stalk you.

Even sharing the most basic information about yourself, like your name and birth date, can help a person steal your identity. An identity thief can use your personal information to do things like stealing money or tricking you into buying something, and also misusing social media websites such as Facebook to create a fake profile of you or hack into your email. There are ways to reduce the risk of that happening. See our fact sheet on identity theft for more information.

Privacy and social networking websites

Social networking websites like Facebook and Twitter are a great way to share your thoughts and keep in touch with friends and family, but it's important to think about who else might be able to see what you post. Depending on your privacy settings, teachers, employers or people you don't know may be able to see your posts. Even after you delete photos, chat logs and other information from your account, sites like Facebook store this data for long periods of time and may choose to share this data with other companies.

Most social media websites have privacy settings that users can set based on their preferences. These privacy settings allow you to choose who can and can’t view your profile, photos, posts, etc. You should review your privacy settings often, and be as careful as possible when deciding who you give access to. If you don’t know how to check or update your privacy settings, ask a trusted friend or adult for help.

Remember that each time you accept a new friend or follower, you’re letting that person into your private circle—so don’t accept friend requests from people you don’t know or don’t trust. Here’s an example:

Jessie and her friends are having a competition to see who has the most Facebook friends. In order to win, Jessie starts to add people that she doesn’t know. She also continues to post photos and videos of herself, and share information on where she has been and what events she is going to.

One afternoon, Jessie is going to the beach with a couple of her friends from school. Before she leaves, she has a conversation on her Facebook wall with one of her friends about which beach they are going to, and when they are going. When she arrives at the beach, Jessie “checks in”, sharing her location with all her Facebook friends.  She notices that Fred, one of the strangers Jessie added to increase her Facebook ‘friends’ has ‘liked’ this post.

That night, Fred posts photos of Jessie and her friends at the beach, and tags Jessie in the photos. Fred’s Facebook friends have ‘liked’ the photos, and made lots of nasty comments about how Jessie and her friends look.

Jessie is extremely upset. She had no idea that Fred was at the beach watching her and her friends, and is scared about who else is able to find out where she is using the information on her Facebook wall. She is embarrassed that all her close friends, as well as all the strangers she added to her ‘friends’ list have seen the photos on Facebook.

Example

Jessie and her friends are having a competition to see who has the most Facebook friends. In order to win, Jessie starts to add people that she doesn’t know. She also continues to post photos and videos of herself, and share information on where she has been and what events she is going to.

One afternoon, Jessie is going to the beach with a couple of her friends from school. Before she leaves, she has a conversation on her Facebook wall with one of her friends about which beach they are going to, and when they are going. When she arrives at the beach, Jessie “checks in”, sharing her location with all her Facebook friends. She notices that Fred, one of the strangers Jessie added to increase her Facebook ‘friends’ has ‘liked’ this post.

That night, Fred posts photos of Jessie and her friends at the beach, and tags Jessie in the photos. Fred’s Facebook friends have ‘liked’ the photos, and made lots of nasty comments about how Jessie and her friends look.

Jessie is extremely upset. She had no idea that Fred was at the beach watching her and her friends, and is scared about who else is able to find out where she is using the information on her Facebook wall. She is embarrassed that all her close friends, as well as all the strangers she added to her ‘friends’ list have seen the photos on Facebook.

Privacy and the law 

The laws protecting your right to personal privacy are complicated. Whether you are protected or not will depend on the situation in which your personal information is revealed.

Can someone take a photo/video of me and post it online without my permission?

Ultimately the answer depends on who is taking the photo/video, where is it being taken, and for what purpose is the photo/video being used.

· There are no laws that stop someone taking your photo/video in a public place and then posting it online.

· There are no laws that stop someone posting photos/ videos of you taken from a public location, even when you are on private property. So someone can post a photo of you in your home or garden as long as it was taken from the public footpath. Similarly, there are no laws that stop people posting photos of you taken from property they have permission to be on (such as their private property), even when you are on private property.

· There are laws that prevent people entering privately owned property without permission. This means that the owner of private property can take legal action to punish people taking photos/ videos after entering their property without permission, and in some cases may be able to stop the person using or posting the photos/ videos taken.

· There are some places where permission is needed before any photos/videos can be taken. These places include museums, galleries, sporting arenas and airports.

· If a large business takes a photo/video of you for a commercial purpose (like an advertisement) and you are identifiable in the photo/video they must get your permission to use or post the image online.

What if you didn’t know or agree to your picture or video being taken in the first place?

It’s NEVER ok to photograph or record someone’s private parts or private activities without their knowledge or permission. If you’re under 18 and you or someone else have taken a ‘sexy’ or nude picture/video of you, please see our Sexting factsheet for more info.

In South Australia, there are specific laws against taking a photo/video of people’s private parts or doing private activities in circumstances where a reasonable person would expect privacy or not to be filmed. These include filming/photographing:

· someone undressing/undressed

· someone’s private parts (either bare or covered by underwear)

· someone using the toilet;

· a sexual act of a kind not ordinarily done in public

The maximum penalty for taking a photo/video of these kinds of private things, or sharing them, is 2 years in jail. If the person filmed is under 18, then the maximum penalty is 4 years in jail.

It’s also a crime to take a picture/recording of someone doing something humiliating or degrading without their permission. This doesn’t have to be something involving a person’s private parts or private activities. All it has to be is something either an assault/other act of violence or something that reasonable adults would think would be humiliating or degrading (but not something which causes only minor or moderate embarrassment). The maximum penalty for filming this type of act, or sharing a video or photo of it, is 1 year in jail.

There are also other laws that could apply to this type of behaviour. For example, the law considers it stalking if you repeatedly scare someone or harass them.  This could include by taking or sharing private pictures or videos of them.  The maximum penalty for stalking is three years in jail (but the penalty can be as high as five years if the person stalked is under 12 years old). 

It’s also a crime if someone uses the internet to record or live stream a person without their permission. This could include recording a photo or video of them doing something private or of their private parts.  For example, in August 2013, two young ADF cadets were found guilty of using the internet in a harassing and offensive way after one of them live streamed himself having sex with another teenage cadet (without her knowledge or permission) so his friends could watch through Skype. The maximum penalty for this crime is up to 3 years in jail. Even if the private part or activity isn’t recorded using the internet, if it is later posted or sent online, this could also be against the law.

Publishing an image or video of someone doing something private like this could also be considered defamation. Defamation happens when someone hurts another person’s reputation by spreading false or humiliating material about them. While defamation can be a crime in extreme circumstances, it is most often a basis for suing someone in court. For example, in Queensland, a guy sent a naked photo of his ex-girlfriend to a nudie magazine as revenge, and the magazine published the photo along with embarrassing commentary. The ex-girlfriend sued for defamation and the court ordered both the ex-boyfriend and the magazine to pay her compensation for the humiliation she experienced.

When a person tries to blackmail somebody by threatening to publish photos or videos, other laws can apply. For more information, send a Lawmail.

How do internet and social media sites use my information?

Even after you delete photos, chat logs and other information from your account, sites like Facebook can store this information for long periods of time and may choose to share it with other organisations.

If you’re dealing with an Australian company, you do have the right to ask for access to your personal information (like any email and chat messages), or that any information identifying you be corrected or deleted/de-identified if it is no longer required. But, most popular social media companies are not Australian, and this law will not apply to a website that is owned by an overseas company. This means that it is best to check each sites privacy policies to see how they collect, store and use your information.

Here are the privacy policies of some popular social media websites:

Facebook: https://www.facebook.com/about/privacy/

Twitter: https://twitter.com/privacy

Youtube: http://www.google.com/intl/en/policies/privacy/

Protecting your privacy

Enable privacy settings. Most social media websites have privacy settings that users can set based on their preferences. These privacy settings allow you to choose who can and can’t view your profile, photos, posts, etc. You should review your privacy settings often, and know what information is protected under the privacy policy. If you don’t know how to check or update your privacy settings, ask a trusted friend or adult for help.

Protect your passwords. Don’t share your passwords with friends or others and change them regularly (every 3-6 months). When login information falls into the wrong hands the chances of personal information being used inappropriately increases.

Be aware of what you’re agreeing to. When giving permission someone to use a photo/ video of you, check whether you are just letting that person using your information, or whether you are you giving them permission to distribute your personal information to other people as well.

Think before you share. Sharing personal information online can have serious consequences for yourself and for those around you. It is also difficult to remove information from the internet once it has been shared. Think very carefully about who you are sharing information with, and what they plan on doing with it. If you don’t know what to do, always ask for advice form an adult you trust before sharing personal information.

Friend or Foe? Remember that each time you accept a new friend or follower, you’re letting that person into your private circle—it’s best to avoid accept friend requests from people you don’t know or don’t trust.

What can I do if my personal privacy has been invaded?

If you think your privacy has been invaded by an organisation that has photographed or filmed you, then you can make a complaint to them. If they do nothing about your complaint, you can complain to the Office of Australian Information Commissioner (OAIC) and they will investigate your complaint. You can find out more information about your privacy rights and how to make a complaint on their website at http://www.oaic.gov.au/privacy/privacy-news.

If you think your privacy has been invaded by an individual (like one of your schoolmates) that has revealed personal information about you or posted photos/ videos of you online without your permission you can:

  • Ask the person to take down the information/message/photo/ video that they have posted.
  • If they don’t take the information down, you can ask the website administrator to remove the post. If the information was posted by a schoolmate, you can also talk to a teacher or school counsellor, who may be able to speak to the person on your behalf.
  • If necessary, change your login information to protect yourself from other privacy invasions.
  • Send us a Lawmail. We can tell you what your options are and help you send a notice to the person who has shared pictures or videos of you without your permission.
  • If you want to talk to someone about how you’re feeling, you can call the Kids Helpline on 1800 55 1800 or visit their website at www.kidshelp.com.au.

For more information, see www.staysmartonline.gov.au

 

 

This information was last reviewed on 12 November 2013. This factsheet provides information about the law in SA. It does not provide legal advice. If you need advice, or if you would like more information about the law, please send us a Lawmail.

 

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