Is Video Recording Someone in Public Illegal?

Is Video Recording Someone in Public Illegal?

As photographer Ken Duncan took pictures at Sydney’s Barangaroo Reserve, he was accosted by rangers for engaging in commercial photography without paying a fee or obtaining a permit. In fact, he was taking pictures for a friend and not for a commercial purpose. When rangers explained that they saw him on their video cameras using a tripod to take pictures at several locations, Duncan asked why rangers could film him without his consent while prohibiting him from taking pictures of scenery for his own use.

Given that any smartphone can take pictures and videos, the situation in which Ken Duncan found himself is becoming more common. People make video recordings for many reasons. A video “selfie” might be distributed for fun on social media. A video of stops on a family vacation may preserve cherished memories. Videos that capture criminal acts can help the police solve a crime. Videos can also be useful evidence when they capture the police behaving unlawfully.

Of course, not everyone wants to be recorded in a video. Tension sometimes arises when one person desires privacy and another person wants to record activities that occur in a public place. Before making a video of anyone other than yourself, your family, or people who consent to be recorded, it is important to understand your rights.

Video Recording in Public Places

Whether you can lawfully make a recording without anyone’s consent often depends on whether the recording is made in a public or private place. As a general rule, no law in NSW prohibits making a video recording in a public place for a noncommercial purpose.

Streets that are owned by the government are public places. So are parks, beaches, and other areas that been set aside for public gatherings or social uses.

The fact that people happen to be captured in a video does not make the video unlawful, provided it is made in a public place for a noncommercial purpose. People who use public places are captured on video cameras every day. Surveillance cameras routinely record people as they enter stores or wait for a train.

Some people might not want to be recorded, but there is no generalized right to privacy in Australia. People who go out in public take the risk that they will be seen, spoken to, photographed, or recorded on video. Their remedy is to cover their face or to turn away from the recording device. People who have been recorded have no right to demand the recording from the person who made it.

For the most part, police officers have no greater privacy rights than anyone else. Making a video recording of a police officer in a public place is not usually a criminal offence, even if the officer doesn’t want to be recorded. Exceptions may exist, however, if the recording interferes with a covert operation or if the person making the recording prevents the police from carrying out their duties.

Offensive Conduct

Even in a public place, individuals need to be careful about how they make video recordings. Making a video of someone who doesn’t want to be recorded is impolite. The law does not demand polite behavior, but doing something that irritates someone else creates the risk of provoking a conflict that might escalate into a public disturbance. The police might also decide that persistently recording someone who resists being recorded is a form of offensive conduct. The person making the recording might have a strong defense to the charge, but nobody wants to be arrested. It may be better just to walk away.

Whether making a recording in a public place can legitimately be viewed as offensive conduct will depend on the circumstances. For example, making a panoramic recording of a beach and of people who are enjoying the sun is fine, but focusing on a particular person in swimwear might be regarded as offensive conduct. Exactly where the line is drawn when recording people on a beach or in a swimming pool is unclear, but the safest (and most polite) practice is not to focus the camera persistently on a particular person without that person’s consent.

Video Recording in Private Places

Different rules apply in private places. A private place is generally any land or building that is privately owned. Examples of private places include residential homes, offices, businesses, shopping centers, museums, and stadiums.

Owners of private places make their own rules about video recordings. They can decide to allow recordings in some parts of a building but not others. They can allow photographs to be taken while prohibiting video recordings. They can allow recordings to be made during certain hours or ban them entirely.

Unless a videographer engages in offensive conduct, it isn’t a crime to break the property owner’s rules. However, the property owner can ask anyone to leave who violates the owner’s rules, and someone who refuses to leave might be guilty of trespassing. It’s always best to ask permission before making a recording on private property and, if permission is refused, to respect the property owner’s wishes.

Commercial Recordings

The rules are also different when recordings are made for a commercial purpose. A recording that the videographer intends to sell or to use as advertising for a business is made for a commercial purpose. As a general guideline, any recording that is made with the intent to make money is probably made for a commercial purpose.

Here’s an example. If you are recording a fountain in a park to preserve memories of a vacation and a celebrity happens to stand next to the fountain, you have not violated any laws. If you deliberately record the same celebrity standing next to the same fountain so that you can post the recording on your business website, perhaps to imply that the celebrity endorses your business, you might get into trouble for making a misleading claim.

In some cases, making a recording for a commercial purpose may also violate copyright laws. For example, a mime or a juggler might be giving a performance in a public place. If you record the performance without the performer’s consent and play it on a television screen to amuse the customers at a pub you own, you are likely infringing the performer’s rights under Australia’s copyright law.

The law is not always clear when it addresses the commercial uses of public art. While sculptures on permanent display in a park can probably be recorded and used commercially (at least if the attribution is given to the sculptor), that exception to copyright law does not necessarily apply to murals and other forms of public art. It is best to get permission or to ask for legal advice before recording any person or artistic creation for a commercial purpose.