Submission in response to

Issues Papers: A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy, September 2011.

Submitted by Monash Research Team (Prof Anne Marsh, Prof Mark Davison, Dr Melissa Miles, Dr Daniel Palmer) in association with the Centre for Contemporary Photography (CCP). The CCP was established in 1986 by the photographic community as a not-for-profit exhibition and resource centre, it has played a pivotal role in the support of photographyacross all genres and has consistently attracted public and private funding.[1]
Our submission concerns the section titled: ‘Freedom of expression, artistic freedom, and freedom of the press’ (pp 28-9) which outlines the problems that may arise if a right of privacy legislation is applied too rigidly. Specifically, we address theproposed introduction of a statutory right to privacy and action for breaches of privacy which the NSWLRC has already indicated: "wouldunfairly tilt the balance in favour of the interest in privacy at the expense of the interest in freedom of expression, which would not itself be protected by statute.” We want to bring the Government’s attention to the ways in which photography in public space is being curtailed as a result of public anxieties about privacy. We believe that any future legislation protecting privacy must protect artists and photographers who produce images of the public sphere. Further restrictions of the existing legal freedom to create and disseminate such images has many potential deleterious effects. They include impeding the creation of a record of our visual culture and thus limiting the national archive for future generations. It will also curtail individual rights of expression.

Our recommendations are as follows:

  1. No right of privacy should be created unless and until other important rights that need to be balanced against such a right, such as a right of freedom of artistic expression for all Australians, are also created.
  2. If a statutory right of privacy is created before the creation of other rights, the threshold for the breach of such a right should be a very high one. The legislation should expressly acknowledge the importance of freedom of artistic expression and the need to balance that freedom against any right of privacy in determining whether the right of privacy has been violated.

Photography in Public Space: Research overview

Researchers in the Faculty of Art and Design and the Faculty of Law at Monash University, in partnership with the Centre for Contemporary Photography (CCP) in Melbourne, are currently undertaking a major study of changing public perceptions and laws concerning public photography in Australia in the past decade. The study examines the impact of new photographic technologies and investigates the changing nature of photography in public space. A survey made available on the CCP’s website in (2009-2010) enabled us to collect information from 261 Australian photographers who have taken photographs in public space over the last decade. These responses were followed up with focus group discussions which were audio recorded. Statistics from the survey indicate that:

Of the 261 photographers who completed the survey, 74.7 per cent reported being asked to stop taking photographs in public space. 15.9 per cent of those had been threatened with physical harm during the process, 17.6 per cent were threatened with legal action or arrest despite the fact that they were acting within their rights, and 26 per cent were subject to demands that the photographs be deleted or film confiscated. Although ‘spy phones’[2] and ‘perverts with mobile phone cameras’[3] are targeted in much of the media coverage of this issue, it is telling that in this survey only one respondent was using a mobile phone camera when they were asked to stop photographing, and 76.3 per cent were using professional SLR cameras. Moreover, these incidents appear to be on the rise. Although all of the confrontations occurred during the last ten years, 82 per cent happened during the last three years. It seems that now a photographer is placed under suspicion simply for taking their camera out in public. The impact of changing attitudes towards public photography are clearly being experienced in very concrete ways by photographers working in diverse public contexts, some privately owned and others not, yet we must also consider their larger implications for our experience of public life today and in the future.

It is troubling that these events have also produced a tendency towards self-censorship amongst photographers; 69.8 per cent of respondents to this survey noted that the fear of being confronted or threatened has prevented them, on occasions, from taking photographs in public spaces, and 75.4 per cent reported that the fear of being confronted or threatened has changed the way that they take photographs in public spaces. Sydney photographer, David Knight, has gone as far as stating that he has given up on beach photography altogether because he does not want to be labeled ‘as some sort of pervert.’[4]

The Monash research project, funded by the Australian Research Council through its Linkage Project grant scheme (2009-2012), has already provided some detailed accounts of the ways in which contemporary anxieties around public photography, and new laws and restrictions, are impacting on the configuration of public space, the perceptions of photographers, historical memory, and our ability to know and understand the society in which we live.

To date several papers have been accepted or published in academic journals[5] and a legal manual, titled Taking Photographs ‘in Public’: What’s Lawful and What’s Not? (Professor Mark Davison and Mr Tobias Gattineau), was launched at a public symposium—Photography as Crime—held at the CCP (October 15, 2011). The manual clarifies the complex array of legal limitations that photographers in Victoria need to be aware of before taking photographs in public space. That such a manual is necessary already suggests that photographers are fearful of the consequences of taking photographs in public. Our research to date certainly indicates that photographers are concerned and many have already decided to change their practice for fear of litigation.

Public anxiety: unauthorized photography

The capacity of the unauthorized photograph to circulate widely without the permission of its subject was most recently highlighted by the media storm surrounding an image of model Lara Bingle in the shower, taken by her then-lover Brendan Fevola. While this case highlighted the capacity of the camera to wrench intimate moments into the public sphere, of more concern is the controversy that has erupted over unauthorized photography in public space. In February 2002, photographs of teenage boys rowing on the Yarra River, taken without their consent, were posted on the Internet, provoking outrage from their families and schools. Later that year, unauthorized photography again prompted public anxieties when photographs of a sixteen year old, male, surf-lifesaver were posted on a sports fetish website. More recently, media organisations reported the discovery of a website carrying hundreds of photographs of Queensland children playing in public parks, which generated a public scandal, and—despite the site carrying no links to pornographic materials of any kind—led to the closure of the site. While each of these incidents concerned photographs of people in public places, they nonetheless generated new fears about privacy and the de-contextualization enabled by the combination of new photographic technologies and the Internet. In the ensuing climate of anxiety, the Standing Committee of Attorneys-General released a discussion paper on Unauthorised Photographs on the Internet and Ancillary Privacy Issues.

The apprehension of photographers.

As the discussion paper generated a raft of responses, increased public debate around unauthorized photography saw photographers themselves treated with increasing suspicion. In December 2006, photographer Rex Dupain had his camera confiscated and was questioned for 25 minutes by police on Bondi Beach as he tried to recreate famous beach photographs taken by his father, Max Dupain. This incident, selected from a host of similar ones, points to a transformation in attitudes to public photography that is not yet well understood, but that is already impacting on photographic practices, and on society more broadly.

The social record

Public photography has played a key role in providing a record of social history, and its restriction poses real questions about historical memory, the reconfiguration of public space, and our ability to understand and reflect upon our society. That such restrictions hold the potential to radically transform our society by depriving us of an important tool of historical memorializing and social understanding becomes clear if we examine historical precedents of those photographs that are increasingly deemed unacceptable in the current climate of suspicion. Max Dupain’s iconic photographs of Bondi in the late 1930s, which his son was prevented from recreating, provide a record of the complexities of Australian identity in the period, with its glorification of masculinity, hedonism and egalitarianism.[6] Wolfgang Sievers’s photographs of industry and industrial workers documented the post-war manufacturing boom, providing us with an historical record of industries that have since disappeared and of working conditions in Australian manufacturing. Numerous amateur photographers, armed with cheap, portable cameras, have created a public record of the prosaic and the everyday—a record of those who are neither celebrities nor statesmen. Without such images, our ability to understand our history and our society would be greatly diminished.

Photography restrictions also hold the potential to reconfigure the border between public and private, and to transform the way in which we experience public space. Street photography, often an archetypal instance of the unauthorized photograph, “has produced many masterpieces that have illuminated our sense of ourselves as citizens sharing urban space.”[7]Currently, as described above, there is a range of defacto, perceived and real restrictions on photographers preventing them from taking photographs in public space. Our concern is that the cause of action, if not fairly balanced to account for the need for artistic freedom, will unduly restrict photographers’ rights to freedom of expression and limit the public visual record of our society.

Conclusion:

One of the difficulties with the creation of a right of privacy is that countervailing rights, such as a right of freedom of artistic expression, are not created at the same time. The legal consequence may be that the former is excessively privileged over the latter. For that reason, our preference is that no right of privacy be created unless and until other rights, such as a right of freedom of artistic and literary expression, are also created.

At the very least, a statutory right of privacy must recognize the existence of and the importance of freedom of artistic and literary expression, especially where the expression is of activity occurring in public. It is vital that such a right to freedom of artistic and literary expression is applicable to all Australians, whether creating work as amateurs, hobbyists or professionals.In addition, any right of privacy should be crafted such that the threshold for its application is a very high one. To do otherwise would invite an increase in complaints about artistic and literary expression and, in turn, add to the existing and increasingly hostile attitude within some parts of the community to such expression.

Contact details

Submitted by Professor Anne Marsh on behalf of the Monash research team.

Professor of Art Theory

Faculty of Art & Design

Monash University (Caulfield Campus)

Building B, Room 6.12

900 Dandegong Road

Caulfield East

VIC 3145

Phone: 0439 338 290 / 03 9903 1856

Fax: 03 9903 2845

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[1]

[2] Peter Mickelburough and Michelle Rose, "Review of Spy Phone Laws." Herald Sun, 12 June 2003, p. 15.

[3] GregThorn, "Peeping Toms",Herald Sun, 10 December 2005.

[4] Sharon Verghis, "Shutter Shutdown." The Sydney Morning Herald, 26 February 2005, p. 31.

[5]Melissa Miles, “Photography, Privacy and the Public”, Law, Culture and the Humanities, (forthcoming, accepted 19 October 2011);Melissa Miles and Jessica Whyte, “Perverting Photography”, Arena, Number 109, December 2010, pp. 41-45. Daniel Palmer, “In Naked Repose: The Face of Candid Portrait Photography”, Angelaki, 16:1, 2011, pp. 111-128. Daniel Palmer and Jessica Whyte, “No Credible Photographic Interest: Photography Restrictions and Surveillance in the Time of Terror”, Philosophy of Photography, 1:2, 2010, pp. 177-195.

[6] See Geoffrey Batchen, Each Wild Idea: Photography, Writing, History, MIT Press, Massachusetts, 2002, p.32.

[7]Martyn Jolly and Kathryn Giles, “Panic and Paranoia: The Law and Photography in Australia”, Photofile, Vol. 23, 2007, p. 24.