The law regarding filming or videoing another individual is complex.
Whether consent is required to film another person depends on who is filming, what is being filmed, where it is being filmed, and for what purpose.
There are various state and commonwealth laws that apply, and that may prevent you from using a recording obtained without a person’s consent.
These include state and commonwealth privacy, surveillance and telephone interception acts.
Some acts of filming can amount to a criminal offence.
This article will examine what the law says about one individual filming another individual in a private space.
In a series of upcoming posts, we will discuss filming in public spaces using smart phones and other devices, what the law says about having cameras in your own home, and other scenarios.
Filming in a private space
The rules differ depending on whether the filming is being done in a public space or a private space.
A public place is a social space that is open and accessible to everyone, like a park, or the footpath or road.
Generally, you can film in a public space without consent, although you may need a permit from the local council if you are making a film.
A private space is an area owned by someone, and that someone can set rules of entry and exit.
Examples of private spaces are homes, shops, sporting venues, shopping malls, schools and similar places.
The owner of a private property can prevent you from filming on their property.
Failure to comply with the owner of a property who asks you to stop filming while on their property can lead to you being banned from the premises, or even possibly facing a civil lawsuit such as a nuisance suit.
Therefore, it is important be mindful of where you are filming. If you are on someone’s property, it is best to get their consent before recording. Although you can’t film on private property without consent, filming someone on their property from a public space isn’t an offence. For example, it isn’t illegal to film a neighbour’s property from your own, or film someone on private property from a public footpath – although certain other laws may apply here, depending on the circumstances.
In a private space, there are some activities where filming someone without their consent amounts to a criminal offence. In NSW, the following are criminal offences:
- Filming a person engaged in a private act without the person’s consent (s91K of the Crimes Act). A “private act” is if the person being filmed is in a state of undress, using the toilet, shower or bath, engaged in a sexual act of a kind not ordinarily done in public, or engaged in any other like activity, and a reasonable person would ordinarily expect to be afforded privacy in that circumstance. For example, using a webcam to film another person engaged in a “private act” must require the consent of the person being filmed. Failure to obtain the subject’s consent amounts to a criminal offence, and the maximum penalty is up to two years’ imprisonment. If the subject is under 16 years of age, the prison sentence increases, up to five years.
- Filming a person’s private parts (s91L of the Crimes Act). This is similar to filming a person engaged in a private act. Consent is required when filming a person’s private parts, and recording without it amounts to a criminal offence where the maximum penalty is two years’ imprisonment, or five years if the child is under 16 years of age.
- Filming an act of indecency involving a person under 16 years of age is considered an aggravated act of indecency, and the maximum penalty is 10 years in prison (s61O of the Crimes Act). An “indecent act” is not defined in the law, but rather is considered to be anything that is morally reprehensible. The act itself is prohibited. Therefore the issue of consent is irrelevant.
- Child abuse material (ss 91FA -H of the Crimes Act). No child can be filmed as a victim of torture or cruelty, in a sexual pose or activity, nor can their private parts be filmed. Again such acts are entirely prohibited and consent is irrelevant. Such an offence attracts a maximum penalty of 14 years’ imprisonment.
Further legal information on these offences can be found at the Judicial Commission of NSW. If you’re concerned that you may have filmed someone illegally without consent, or someone has filmed you in a private space without your permission and has published the footage, it is recommended you speak with a criminal defence lawyer directly.