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Privacy

1    What is privacy and why is it important?  
2    Unauthorised use of your photo/video  
3    What to do if you come across a picture of yourself being used without your permission online      
4    What to do if you come across a picture of yourself being used for advertising purposes      
5    What to do if someone has taken a photo/video of you doing something private  
6    Other offences      
7    Companies using your private information and data  
8    Revealing secret information about you  
9    Spreading false or damaging information about you


1    What is privacy and why is it important?

In our modern society and especially among the younger generations, privacy issues arise almost every day. For example, issues can arise when you’re using Facebook, or when you are shopping with a credit card, doing online banking or using your mobile phone.

It’s important to be vigilant about protecting your own personal privacy, while ensuring you do not encroach on the privacy of others. Each State in Australia has a number of laws which help its citizens to protect their privacy and ensure everyone is kept safe.

Privacy issues have become more prevalent with the growth and use of technology in our everyday life. Even sharing the most basic information about yourself online, like your name and birth date, can put your privacy at risk. In addition, distributing illicit photos of others, even just as a joke, can be a very serious crime in Australia.


2    Unauthorised use of your photo/video

An unauthorised use of your image happens when someone takes a photo or video of you and distribute it without your permission.  In Australia, there is no general right to privacy.  This means there is no law which prevents an image of you being used without your permission (except in particular circumstances set out below). However, there are steps you may be able to take if you think images of you are being used online or elsewhere without your permission. If the image or video contains explicit or private conduct of you, the law may be of more assistance. You may also be able to seek help under the law if an image or photo of you is being used for commercial purposes such as advertising or if an image is damaging to your reputation.

The following examples illustrate the different situations in which taking your photo may be illegal and the situations in which your privacy may not be protected by the law.
▪    There are no laws preventing an individual taking your photo in a public place and posting it online.
▪    There are also no laws preventing an individual from taking photos of you on your private property as long as they have not entered your property without your permission. In Australia, the law of trespass prevents people from entering your property without your permission. So if someone has taken a photo of you while  on your property, you may be able to take legal action against them for trespass and may be able to prevent the photos from being taken used or published.


3    What to do if you come across a picture of yourself being used without your permission online

The law

There are no specific laws within Australia preventing someone taking your photo or video in a public place and then posting it online (unless the photo or video shows you doing something private.  See below).

Steps to take

▪    Ask the person who is distributing your photo to take it down. For example, if you find a photo of yourself on a social networking site such as Facebook, you can ask the person who posted the picture to remove it.

▪    You can write directly to the social networking site or network administrator asking them to remove the post, image or video. See below for the links to some of the social networking sites complaint sections:
o    Facebook: https://www.facebook.com/help/181495968648557/
o    Twitter: https://support.twitter.com/articles/20069937#
o    YouTube: https://support.google.com/youtube/answer/142443
o    Instagram: https://help.instagram.com/192435014247952


4    What to do if you come across a picture of yourself being used for advertising purposes

The law

The Australian Consumer Law prevents companies and businesses from misleading and deceiving consumers. This means that a company cannot publish an image or video of you promoting something without your permission. If someone wants your permission to publish your image for this purpose, you will usually be asked to sign a waiver.

Steps to take

▪    Ask the person or company who is using your photo for commercial purposes to remove it. For example, if you see yourself in an image or video advert of promoting a business or a product and you did not give permission, you can contact the company or advertising agency and ask them to remove it.  

▪    You can lodge a complaint with the Advertising Standards Board. Their website is: https://adstandards.com.au/

▪    You can also make a complaint to the Australian Competition and Consumer Commission (ACCC). Their website is: http://www.accc.gov.au/

▪    You can also make a complaint to Consumer Affairs Victoria. Their website is https://www.consumer.vic.gov.au/


5    What to do if someone has taken a photo/video of you doing something private

The law

In Victoria, it is against the law to publish or send to another person “intimate images” of a person who is under 18 without their consent.  For example, this may involve posting or sharing on a social media site images or videos of a person either naked or performing a sexual act or texting or emailing such images or videos among friends.  It is also against the law to threaten another person with the publication or sharing of such images or videos. In Victoria, it is also against the law to create, or possess child pornography, or to invite a person who is under 18 to be involved in the making of child pornography.  Child pornography is any image or video which shows a person who is under 18 either naked, performing a sexual act or otherwise in an indecent sexual way.

It is also a crime to use the internet to record someone or share images or videos of that person without their permission if the material shared would be regarded as harassing or offensive. This crime carries a possible maximum penalty of 3 years in prison.
For a more detailed description of the laws relevant to sharing sexual photos of someone please see our Sexting page. It is really important to note that the law does not distinguish between people in relationships and those who are not. So if you are dating someone who is considered a child, possessing sexual material of your girlfriend/boyfriend is still a crime.

Publishing an image of someone doing something private could also be considered defamation. See information under the heading “Revealing secret information about you”.


6    Other offences

Identity theft

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 steal money or trick you into buying something, misuse 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.

In Australia it is an offence to produce, supply or obtain data or a device (such as a mobile phone or computer) with the intention of using another person’s information as your own. This law is in place to protect you and your private information from being used by other people.

Unauthorised recording using a surveillance device

In Victoria, it is against the law to use a device to record, monitor or listen to the private conversation of another without their consent if you are not a part of the conversation.  It is also against the law to use a device to film or observe a private activity without consent if you are not part of the activity.

It is not illegal to secretly record or film another person without their consent if you are a part of the conversation or activity yourself.

However, you must not publish the recording or send the recording to others without the consent of each person involved in the conversation or activity. 

Stalking

In Victoria, it is against the law to stalk another person. This may include taking photos of them, following them, contacting them, watching them, or making threats or being abusive towards them with the intention of causing the person fear or physical or mental harm.   A person found guilty of stalking may be sentenced to a possible maximum penalty of 10 years in prison.


7    Companies using your private information and data

The law

Organisations such as national Government agencies, large businesses, health service providers and credit reporting agencies have specific obligations when dealing with your personal information.

Personal information that is protected by the law includes information about you such as your name, signature, address, telephone number, date of birth, medical records and bank account details.

Legally, before such organisations can collect and store your personal information, they must have a clear privacy policy, they must offer you an option of not identifying yourself if you choose not to (except in some limited circumstances) and they must only collect information that is necessary for them to provide their services, or directing related to one of their services.

Further to that, sensitive information can generally only be collected from you with your consent. Sensitive information includes information about your race, political opinions, membership to a political organisation, religious beliefs, sexual orientation, criminal records and information about your membership to a trade union or trade association.

The above organisations are also required to provide you with information regarding the way in which they use your personal information. This includes the purpose for which they collect your information, to whom they disclose your information, details about how you can see what personal information is held and details about their complaints process if you think any of the above principles have not been followed.

Organisations are generally not permitted to use your personal details for any purpose other than exact purpose for which it was collected. So, if an organisation such as your internet service provider collects your phone number for the purpose of contacting you about their service, they would not be permitted to use your number for any other purpose. Organisations are also not permitted to use your contact details to send you marketing material unless you have given your permission.

Organisations must also try to ensure that the information they hold is accurate, that it is held securely and that any inaccurate information is corrected. Generally, organisations must also give you access to the information that they hold about you if you ask for it.

Steps to take

If you think your personal information has been misused by an Australian Organisation, 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/individuals.


8    Revealing secret information about you

If someone attempts to post or reveal to others information about you that is very private, this may also be against the law. In order for it to be against the law, you must have provided the information to someone in circumstances where it is obvious that the information was to be kept a secret. The information must be something that most people would consider to be ‘confidential’. Keeping such information a secret must be extremely important to you, in order for the information to fall under this law.


9    Spreading false or damaging information about you

If a person reveals information about you to another person or a group of people, and that information would cause others to think less of you this may be considered defamation and could be against the law. For more information about this, see our Defamation page.

 

NCYLC would like to express thanks to the law clerks and volunteers who assisted with the preparation of this material: Jack Evans, Ricky Melamdowitz, Claudia Sheridan, Jovana Zelenbaba.

This page was last updated in January 2017.