Under Australian law, you are generally entitled to film in a public space without anyone’s consent.
But there are situations where you will need permission, and the purpose for which you are filming will guide you as to whether you need a permit, and from whom.
This article examines filming in a public place for a private purpose, and filming for a commercial purpose.
Filming in a public space for a private purpose
A public place is a social space that is open and accessible to everyone, like a beach, park, footpath or road.
Councils can own this type of land.
However, although a council may own the land, it is still considered to be a public space.
If a video recording is taken in a public space of a person or a building etc, and the recording is for personal use or a private purpose, then permission is not required from any council or even from the person that you are filming.
The law does not generally prevent the filming of someone in a public space without their consent.
Australia doesn’t have a Bill of Rights that enshrines the right to privacy.
If someone does not want to be filmed, they can put their hand over their face or cover it by some other means so they can’t be identified (which you have probably seen everyone from celebs to defendants do on TV). But they can’t demand your memory card, or to have the images or footage deleted.
What is personal use?
Personal use is what you naturally understand it to mean, and is any use that is not commercial.
For example, if you are filming the area of Circular Quay and the Sydney Opera House for your own preservation of memories as a tourist, you don’t need the permission of Sydney City Council or the Sydney Opera House management.
Nor do you need the permission of anyone recorded in that film.
People are filmed in public spaces without their consent dozens of times a day by surveillance equipment in the street, entering a bank or on train platforms.
All of this footage is for personal use in that it is not used commercially.
You can also attach your own CCTV camera to your property to record activity on the footpaths or roads outside, and you do not need permission.
Filming in a public place for a commercial purpose
If you want to film in a public space that is owned by a council, or the NSW Government in the case of national parks or state buildings for example, it is important to seek a licence if you are intending to use the video for any type of business purpose or commercial use.
For example, if you have taken a video on public land and you choose to publish that recording on the internet as part of your blog, if goods or services are being generated from that blog, then the publication of the video is for a commercial purpose.
A commercial purpose is when the video recording will be used to promote goods or services, or when it generates income (either by monetary profit or by enhancing reputation).
If the recording is used for study or research, then that is not considered a commercial purpose.
It is also important to note that photographers working in the mainstream media do not generally require approval for filming or taking still shots on public land.
When a film is being used for a commercial purpose, the Copyright Act 1968 applies to protect a person’s image or a building being associated with that commercial purpose unless permission is obtained first.
Essentially, consumers ought not to be misled into believing that your product or service has an association with another person or building unless the subject has permitted that association to be made.
Failure to get consent for filming in a public place for a commercial purpose can result in a fine issued by the Australian Competition and Consumer Commission (ACCC) or a breach of copyright.
Councils and government authorities in NSW are bound by the Filming Approval Act. If proper processes are followed, licences to film are usually granted.
So before you start filming in a public place, it’s a good idea to think carefully about your purpose and perhaps speak with an experienced lawyer.
If you have a specific idea in mind and want to use the footage commercially, or you even think you may want to use it commercially at some point in the future, it’s probably best to seek permission.