‘Panic and Paranoia: Photography and the Law’, (with Katherine Giles), Photofile 80, 2007, pp22—25.
Martyn Jolly and Katherine Giles
Every day photographers are experiencing the effects of one of the great contemporary paradoxes of the medium. Never before have photographs been so easy to make and distribute, as millions of digital files are created with mobile phones or digital cameras and uploaded onto the web or distributed electronically. Yet never before have individual photographers felt themselves so inhibited in what they can photograph, where they can photograph and the messages they can put into their photographs. Whether these inhibitions are internalised as a vague feeling that certain types of photography may now be ‘inappropriate’, or whether they come directly from people telling them that photography is ‘not allowed here’, they are all underpinned by an ill-defined sense that the law has somehow changed in relation to photography. Photographers’ blogs are tangled with long threads of discussion about what may or may not be allowed, and are bulging with stories of police, security and members of the public stopping them from taking photographs. As the Sydney photographer, Andrew Nemeth, says on his excellent photographers’ rights website: “Photography is not a crime. Many photographers are fed up with being treated as if they were creeps”.
But how much has the law actually changed? And how much else is now under threat in this current climate of panic and paranoia over morality and security?
In Australia, there is not yet any legal cause of action for a ‘breach of privacy’. Existing privacy laws only refer to the use of personal data by organisations and governments. Nor is the taking of a photograph for the purposes of art, social documentation or as a hobby a commercial use, even if the photograph is later sold. So their subjects are not ‘models’ with the right to ‘release’ their image to the photographer for a particular use. Instead many other laws regulate the area, including: passing-off laws; trespass laws; confidentiality agreements; nuisance and harassment laws; obscenity laws; stalking laws and laws dealing with filming for an indecent purpose.
Denise O’Rourke is currently being sued by two girls under trade practice laws over their portrayal in his documentary Cunnamulla because, they are claiming, he entered into a misleading agreement with them about the subject of the interviews he wanted to do with them. The celebrity model Lara Bingle is using defamation laws to sue the men’s magazine Zoo Weekly for publishing bikini shots of her from earlier on in her career, with the addition of smutty captions. Several men have been charged under offensive behavior laws with using their mobile phones to photograph topless bathers on beaches.
All of these existing laws should be enough to regulate irresponsible photographers, so that the situation in Australia can remain as it currently stands, where, in words of Justice Dowd, “a person … does not have a right not to be photographed”. But nonetheless there is clearly a trend towards a general restriction on the right of photographers to document their world and the people in it. For instance Justice Michael Kirby has argued that extending the law in Australia to protect the ‘honour, reputation and personal privacy of individuals’ would be consistent with international developments in human rights law: “In recent years, stimulated in part by invasions of individual privacy, including by the media, deemed unacceptable to society, several jurisdictions have looked again at the availability under the common law of an actionable wrong of invasion of privacy.”
Since 2002 the technological combination of mobile phone cameras and the internet has become a socially potent combination. This, mixed with publicity about the use of cameras as an integral tool to the sexual assaults on Diane Brimble aboard a cruise ship and a teenager at Werribee, has led to widespread public concern about photography and pedophilia, pornography, immorality and misogyny. This is having an effect on photographers at large.
In early 2005 the Brisbane Courier Mail found a website with non-pornographic, non-offensive photographs of children playing at Southbank on it, they created an unsubstantiated panic that international child pornography rings had linked to the site. They hadn’t, and ultimately no action was taken. In Victoria, a site with close-ups of schoolboy rowers, which had been linked to by other pornographic sites, was also found. Subsequently, several urban councils attempted, unsuccessfully, to use their municipal powers to stop parents photographing on their sports fields and council beaches.  Shortly after, Surf Life Saving Australia called for a complete ban on pictures of its 40,000 young members without the written permission of parents. Although they subsequently backed down, they initially claimed that their young members should be able to “reasonably expect” privacy, even if they were in public areas. Presumably unaware of any irony, they went on to say that they intended to advise their staff to record the appearance, attire and car registration numbers of anybody they spotted breaking this rule.
But the Summary Offences Act 1988 (NSW) already bans photographing a person in a state of undress or engaged in a private act for the purposes of sexual gratification without their consent. Other jurisdictions prohibit taking photographs of private intimate activities in private personal places such as toilets or change rooms. And specific laws to prevent the new lewd uses suggested by camera phones, such as upskirting, are being bought in by various states, which the Standing Committee of Attorneys-General have now agreed to review and regularize. 
Of course, taking lewd pictures of people who might reasonably expect to be unobserved is indefensible, but the tenor of the Standing Committee of Attorneys-General’s discussion paper of August 2005, Unauthorised Photographs on the Internet and Ancillary Privacy Issues, implied a wider drift towards a general right for people to control their image, even when they are taken in public and are not offensive. The discussion paper suggested:
Publishing images of a person without their consent removes their freedom to choose how to present themselves to the world. Some may argue that consent is implicit because the activity is in a public place in full view of people. On the other hand, filming results in a permanent record that can be used in many ways. It is natural that where people are aware they are being filmed, they can adjust their behaviour accordingly. If a person has no knowledge they are being filmed they have no way of reducing the intrusion.
In the new environment of hyperdistribution, this argument runs, the lack of control a subject has over the subsequent use of their image has changed the unposed photograph from simply being a candid image, to being an intrusive act. Arguments such as this are a threat to photographers. For instance one of the medium’s most celebrated genres is street photography, which has produced many masterpieces that have illuminated our sense of ourselves as citizens sharing urban space. In Susan Sontag’s words the street photographer is “an armed version of the solitary walker, reconnoitring, stalking, cruising the urban inferno, the voyeuristic stroller who discovers the city as a landscape of voluptuous extremes.” Is this time-honoured romantic alienation about to become criminalized? Possibly. For instance, whilst shooting a couple of bathers sleeping on the sands of Bondi Beach, in implicit homage to his father’s iconic Sunbaker (1937), Rex Dupain suddenly found himself surrounded by four police officers who questioned him for 25 minutes. “Lifeguards and the police are taking the law into their own hands” he complained, “they regard anyone with a camera as a potential pervert. We sit at home and watch close-ups of people lives on disturbing television reality shows but someone taking pictures at the beach is seen as a threat. Our days as a free society are over.” 
Police and security guards are not the only ones taking it upon themselves to constrain photographers, irrespective of any law, concerned parents are also getting jittery. In preparing for her exhibition of portraits of her son’s soccer team, Under Twelves, at the Ground Floor gallery in Balmain in late 2005, Ella Dreyfus was scrupulous in making sure all parents knew what she was doing. She showed them a sample of the style of her shots, and all agreed to her project enthusiastically. “Young boys are beautiful; their mothers know this, but does society allow us to acknowledge their beauty?” asked Dreyfus. But a few days before the show some parents apparently got nervous at the prospect of her portraits inadvertently inciting pedophilia, and Dreyfus suddenly found herself requested to withdraw two images from the exhibition, and mark six not for sale.
In September 2006 an amateur photographer called Jodie snapped a young man sitting on the steps at Flinders Street Station. He got up and demanded five dollars from her. When she said she didn’t have five dollars he demanded the film, when she told him it was a digital camera things got ugly, and she finally deleted one photograph in front of him before walking away, with him hurling abuse at her. The other shot she kept and uploaded to Flickr, but with his face blacked out. She asked her friends from the Flickr community: ‘Did I do the wrong thing? Should I have uploaded at all? Should I have left the original photo?’
She had attempted to resolve all these dilemmas by erasing her subject’s face in a half guilty, half defiant, compromise to his supposedly violated ‘right to privacy’, while maintaining her own right to photograph the people with who she shares public space. This botched economic transaction between subject and photographer, and its clumsy resolution as the publication of a faceless figure, follows the rising logic of our contemporary visual culture — the logic of the celebrity image.
The celebrity’s commercial capital is their desirable lifestyle, and their enviable body, all encapsulated in their instantly recognizable face. So it is in their interest to regulate and control the production, interpretation and distribution of their image as closely as possible. There are now at least 30 paparazzi in Sydney, and they are at war with celebrities. The frequent incidents between them, such as paparrazi squirting Heath Ledger with water pistols on the red carpet of the Brokeback Mountain premiere, after he allegedly spat at them during the shooting of Candy, are more than crass paparazzi ‘overstepping the mark’, they are symptoms of a fight for the control of a valuable commodity — the celebrity’s face. As one of the paparazzi succinctly put it, “It’s the price of fame, my son. If we stop taking his picture, his price goes down. This is give-and-take. It’s fame. It’s the name of the game. You give us some of your private life because you earn so much money. That’s the way it works”.
Celebrities are applying pressure for a ‘right of privacy’ in Australia for their own purposes. By invoking such a spurious ‘right’ they hope to garner public sympathy for the control and regulation of the supply of their image, but it is harassment and defamation laws that they actually use against photographers. The most famous altercations are between Jamie Fawcett and Nicole Kidman. In early 2005 Kidman took out an interim restraining order against him, claiming he had harassed her and endangered her life by chasing her across Sydney at high speeds. For her wedding, however, she established a temporary truce with the paparazzi, while preemptively devaluing any of their pictures by distributing an official wedding photograph world-wide a few seconds after the ceremony was over. But this New Year holiday season Fawcett and Kidman were at it again, with Kidman complaining of harassment to the Bateman’s Bay police and leaving the country early after he, and a Channel Ten news crew, followed her convoy to the South Coast.
These days everybody is potentially a celebrity, however briefly, and everybody’s face has, at least potentially, a value. Fantasies of instant celebrity are regularly enacted in reality TV shows, and the world of the celebrity can suddenly open to those who have unexpectedly found themselves heroes in the public eye. For instance, the trapped Beaconsfield miners reportedly discussed who should play themselves in the inevitable movie of their rescue (Russell Crowe and Heath Ledger), and the settlement of their deal with Eddie McGuire was delayed while they were locked in negotiation with mine management and the coroner over who would own the rights to video footage the pair took to aide the rescuers during their confinement.
As a result of the pervasiveness of celebrity culture, if we are photographed in public we instinctively tend to think slightly less like citizens mingling in the town square, and slightly more like celebrities caught out on the town. We now carry our faces into public more as our commodity, something we own, something we have carefully grown, groomed and cultivated, something we can always potentially make money from. Within this logic the face is less an interface, and more a logo, a stamped unchangeable rebus of the self, a trademark always potentially on the verge of infringement.
Although there is no automatic right of privacy in Australia, the controllers of any commercial or government premises can make any rules they like as a condition of entry into their property. As the town square becomes the shopping mall, more and more public space is becoming privatised. Pedestrians are no longer citizens experiencing democratic interactions, but consumers having regulated retail experiences. Shopping centre owners want to keep their malls feeling lively and exciting, but they also know that shoppers want, above all else, to feel comfortable and protected, and this falls to automated surveillance systems and private security guards, who can make any rules they like. While the majority of people welcome blanket CCTV coverage because it makes them feel protected, self-expressive photography by ordinary individuals is treated with suspicion because its motivations and destinations are not obvious, and it can’t immediately be recuperated into the shopping experience.
For instance in July this year the Southgate shopping centre in Melbourne erected warning signs featuring a camera crossed out with a bright red slash. In one incident a Chubb security guard stopped the grandmother Val Moss from taking photographs from the public footpath “because”, he said, “of the terrorism overseas”. In response her camera club, the Knox Photographic Society staged a demonstration with over 100 photographers. A spokesperson for the shopping centre said; “There are safety, security, privacy and copyright issues which need to be considered with all photography and filming within the centre, and we reserve the right to ask people to stop filming or photographing if it is deemed inappropriate.”  No, no, no and no. Safety is not compromised by raising a camera to your eye, nor will security be breached by hand held snaps. There is no right of privacy in public space, so why should there be a right of privacy in the ‘new’ public space of the mall, and copyright is not infringed by taking photographs that will only include goods on display or advertising signs as incidental parts of a general scene.
The real reason for these kinds of blanket bans is to restrict the behavior of people using the mall. They attempt to focus the possible behaviors of customers to a narrow spectrum around the core function of shopping – buying, look into shop windows, recharging on coffee and cake, and feeling protected. This narrow band of profitable behavior excludes all other non-corporate behavior previously acceptable in public, such as self-expression.
Towards the end of 2005 the Federal Government introduced the Anti-Terrorism Act (No 2) 2005 (Cth) containing new sedition laws. To date the laws have not been used to prevent artists from expressing their views. But they could be, and in other countries they have been. The new laws go beyond the traditional definition of sedition as crime of intending to overthrow the government or interfere with elections. They broaden it so that it is an offence to simply urge violence in the community, urge interference in parliamentary elections, urge overthrow of the Government or Constitution or urge someone to assist the enemy or assist those engage in armed hostilities.
This shift of focus towards urging other people to commit seditious acts comes without a clear definition of what urging actually is. The courts will have to define what urging actually means when a case comes before them. In advice to Peter Garrett MP, Peter Gray SC stated that the term urging may, “cover indirect ‘urging’, by way of analogy, or dramatisation, or imagery, or metaphor, or allegory, or allusion, or any of the myriad devices and techniques available to a creative artist.” The work of many artists would already fit within this definition, and the vague language creates an uncertain environment that questions the very nature of freedom of expression in Australia. Until a case comes before the courts, the practical effect of these laws on photographers remains unknown, but the chilling effect is already clear. The ability of photographers to create art that has a direct political message is at the cornerstone of a democratic society. Can art that mimics or comments on terrorism or questions the decisions of Government really be terrorism or sedition?
In 2005 the Australian Law Reform Commission examined the new laws and released a Discussion Paper and recommendations which explicitly recognised the concerns of the Australian arts community and the potential chilling effect on artists. The problem is that the sedition laws do not create a clear distinction between legitimate dissent, including the expression of dissent through of works of art, and actions which should be of concern to national security. This all adds to a climate of fear where the actions of a photographer in simply taking photographs, of, say, a public building or an industrial landscape, immediately becomes suspicious. The eventual implications of the new sedition laws on the Australian arts community are unclear, but the chilling effect is already upon us, and is flowing on to the wider social environment. When a photographer is stopped from taking photographs in a public place by a police officer or a security guard ‘because of the terrorism overseas’, this not only affects all other photographers, it also affects the way every one of us experiences our public places and shared spaces.
We live in a world where more is happening on camera, from everyday trips to the shops to orchestrated sexual assaults, yet more is happening off camera as well, from remote detention facilities to intensive industrial farming practices. However this polarisation of visibility is not really being defined by either the freedom of speech or the right to privacy, but by rules of access made by governments and corporations for their own purposes. In this context we need more photographs taken by thoughtful, curious, inquisitive, dallying, dilettantish photographers, armed with nothing more than an ordinary desire to represent their world, not less. But in order to be an effective mode of public speech photographers need to free themselves from the insidious inhibitions, vaguely wrapped up in concerns about intrusion and sedition, that are currently constraining them every time they lift the camera to their eye.
Martyn Jolly is Head of Photomedia at the Australian National University
Katherine Giles is a solicitor with the Arts Law Centre of Australia
 ‘Men’s Magazine Is Smutty: Judge’ The Canberra Times 9 December 2006 p12
 R v Sotheren  NSWSC 204 (26 March 2001) paragraph 25 http://wwwaustliieduau/au/cases/nsw/supreme_ct/2001/204html [date accessed?]
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 Amanda Hodge ‘Fear Kills Joy Of Watching Children Play’ The Weekend Australian 26–27 February 2005 p8
 ‘Surf Body Call For Photo Ban’ Sydney Morning Herald 5 November 2005
 ‘Upskirting To Become A Crime’ Sydney Morning Herald 28 July 2006 np
 ‘Unauthorised Photographs On The Internet And Ancillary Privacy Issues’ Discussion Paper Standing Committee of Attorneys-General August 2005 paragraph 40
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http://flickrcom/photos/sheriffofnothing/193306127/ [date accessed?]
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 ‘Best starring role goes to the beak in Kidman’s paparazzi drama’ Justin Norrie Sydney Morning Herald 12 February 2005Sydney Morning Herald p13
 ‘Nicole cuts her hols short’ The Daily Telegraph 2 January 2007 np
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 ‘Picture this — if you’re allowed: city puts photo ban in the frame’ Carmel Egan The Sunday Age 30 July 2006 p3