Photos & Videos on Your Phone
This page is based on our national identity theft fact sheet...specific state/territory pages are coming soon!
This page explains the laws that apply when you use the photo or recording functions on your phone. It also explains what you can do to stay out of trouble and your options if someone has an inappropriate photo or video of you.
Where can I take photos/videos?
There are different rules for photographing or recording things depending on whether you are in a public place or on private property.
A public place is a social space that is open and accessible to all, like a park. Generally, you have a right to take photos and videos of public places and the people within them. But if you are taking photos or videos in a way that is offensive or a nuisance to those around you, this can be a crime. For example, even though most beaches are public places, you can get in trouble for taking invasive photos of people in their swimmers without their permission.
Private property is a space where the owner can set rules or restrict entry. This includes homes, shops, sport and performance venues, museums and galleries, schools and similar places. These places can make rules that ban people from photographing or recording any part of the space or the people within it (unless they can be seen from a public space). Even if they don’t have specific rules, keep in mind that taking photos or videos of art or performances can break copyright laws.
When is photographing/recording something illegal?
There are some things that you are never allowed to photograph or record no matter where you are.
Nude/Sexy Images of Young People
It’s NEVER ok to take (or post/send/keep) an image of someone under 18:
· showing their private parts (genitals, anus or breasts) for a sexual purpose;
· posing in a sexual way;
· doing a sexual act; or
· in the presence of someone who is doing a sexual act or pose.
This kind of image is called “child pornography” or “child exploitation material”, and is illegal even if the person in the image says it’s ok. This law applies throughout Australia.
If you’re under 18 and accused of taking (or having/sending) this kind of image, the law does offer you some protection—the federal police must get special permission before you can be found guilty of breaking national child pornography laws. The local police do NOT need to get this permission before charging you under similar state and territory laws, so be sure to check out the laws that apply to you on Lawstuff.
Asking for, taking, posting or sending a nude/sexy image of a young person can also be illegal if it’s considered “indecent”. Usually, something is considered “indecent” if it is sexual in a way that the average person finds offensive. For example, in December 2010, a teenager in NSW was found guilty of an indecency crime for encouraging a younger girl to send him a “hot steamy” photo.
Photos/Videos of Someone who Doesn't Consent
It’s NEVER ok to photograph or record someone’s private parts or private activities without their knowledge or permission.
Most states and territories have specific laws against taking photos or videos of this kind. Under the law, private parts include a person’s genital or anal area (even when covered by undies, in some cases). Private activities normally include things like undressing, using the toilet, showering or bathing, or doing a sexual act in a place where a typical person would expect privacy. The laws ban things like “upskirting” (snapping a photo up somebody’s skirt without their permission) and setting up cameras in changing rooms or bedrooms. The maximum penalty for these crimes is 1 to 5 years in jail depending on the state or territory you live in. In some states, the penalty is higher if the victim is a young person.
Even in states and territories where there is no specific law about taking photos or videos of private parts or activities, there are other laws that can apply. For example, every state and territory has laws against stalking. While stalking is defined differently in each state, it covers most forms of repeated harassment that are likely to harm or scare a person–including filming their private parts or activities without their knowledge. For example, in April 2013, a 20 year old guy in Queensland was charged with stalking and other crimes for using a mobile phone to film a teenager in a public toilet. The maximum penalty for stalking can include jail sentences of 10 years or more, depending on the state or territory you live in.
If someone uses the internet to record or live stream a person without their permission, this could also be a crime. 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. For example, in October 2011, a 20 year old guy in NSW posted six nude photos of his ex-girlfriend on Facebook as revenge for breaking up with him. He was found guilty of publishing indecent material and given a suspended sentence of six months.Laws have recently been passed in Victoria which make it a crime to share, or threaten to share, an intimate photo of someone without their consent.
Publishing an image 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.
In most cases, it’s not ok to record a private conversation—even if you are a part of it.
A private conversation is a discussion that’s meant to stay between the people involved. In most states and territories, a conversation is not considered private if the people involved should reasonably expect that someone could overhear it–for example, if they were talking loudly around other people. But in some states and territories, a conversation can still be considered private when a third person overhears it, as long as those involved in the conversation know that the third person can hear it.
While the laws are a little bit different in each state and territory, in most cases, it’s illegal to use your phone or another device to record a conversation without the knowledge and permission of everyone involved. It is illegal to publish the private conversation whether or not you were a part of it–for example, by posting it on YouTube.
It’s NEVER ok to use a photo or video to cyber bully someone.
If someone is sending offensive or humiliating photos, videos or recordings about you to you or other people, this can be a form of harassment or stalking. This is a crime.
For more information, check out your state or territory’s page on cyber bullying at Lawstuff.
Someone has made me uncomfortable by sending (or asking for) an inappropriate photo/video – what should I do?
It is usually best to:
· tell the sender that they are making you uncomfortable and ask them to stop;
· delete any inappropriate photos/videos they have sent you immediately; and
· talk to a trusted adult or send a Lawmail.
If someone keeps bothering you on your phone, you can report them to your phone company. They may be able to send a warning letter telling the person to stop.
If someone keeps bothering you online, you can block them or report them to the website that they’re using to contact you.
Using a phone or internet service to bother someone could be a crime. You can report this to the police or consider applying for a protection order (see below).
I took an inappropriate photo or video – what should I do?
It is usually best to:
· delete the photo/video immediately;
· tell anyone you have sent it to that they should delete it and that if they keep it they may be committing a crime;
· remove it from any websites you have posted it on/report it if someone else has posted it; and
· talk to a trusted adult or send a Lawmail.
If the police get involved, you should contact the Legal Aid service for your State or Territory as soon as possible for free legal advice.
Someone has taken an inappropriate photo/video of me, what can I do?
If you ever want to talk to anyone about anything that’s bothering you, you can contact Kids Helpline on 1800 55 1800. You can also:
1. Ask the person to delete it
In many cases, the easiest thing to do is to ask the person who took the photo to delete it. You can tell them that posting it online or sending it to others could be a crime. If they refuse to delete it, you can send a Lawmail. The Lawmail team can write a notice explaining the laws and letting them know that you will consider going to the police if they don’t delete the photo.
2. Report it to the website
3. Talk to your teacher, school counsellor or principal
Most schools have anti-bullying guidelines that cover cyber bullying. If the person who has an inappropriate photo of you is a student at your school, then your school may be able to help you work things out. Note that if the photo or video is sexual, your school may feel that they have to report it to child protection services or to the police.
4. Apply for a protection order
If someone is using an inappropriate photo or video to bother or frighten you, you may be able to apply to the court for a protection order (also known as a restraining order, intervention order, apprehended violence order or peace and good behaviour order) to keep them from contacting you again.
5. Contact a free legal service in your area about legal action
You may also have a claim to sue someone who harms you or your reputation by posting or sharing inappropriate photos or videos of you. For more information, send a Lawmail or contact your local Community Legal Centre.
6. Report it to the police
If you believe you are the victim of one of the crimes explained above, you can report it to the police. If your situation involves a nude or sexual image of a young person, it’s a good idea to get some free legal advice before going to the police. You can send us a Lawmail, contact the Legal Aid service for your State or Territory or visit your local Community Legal Centre. If someone is threatening or scaring you, please contact the police immediately.
This information was last updated 15 November 2013.
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