by Jeremy Malcolm, Internet lawyer
I was recently asked by a newspaper about a Web site displaying candid photographs of rugby players. Surprisingly there was little that could be done by the players to prevent their photographs from being displayed. The same applies to private photographs of ordinary citizens, which are sometimes posted on the Internet by estranged lovers. In fact the misuse of private photographs, video and Web camera surveillance on the Internet is becoming a pressing issue due to its increasing frequency and the humiliating effect on the victim.
At the moment in Australia there is no specific case law or legislation that addresses this issue, which means that in general a photographer may use photographs they have taken of you for any purpose at all. In contrast, in America the Personal Pictures Protection Bill of 2001 is being considered by Congress. This bill would amend the existing law to prohibit the publication of explicit photographs of people on the Internet without their prior consent.
In Western Australia the Surveillance Devices Act does regulate surveillance without consent. However any pictures or surveillance taken with consent, then put onto the World Wide Web without consent are not restricted by any law.
In one recent case a victim only had recourse because the photographs were used in a blackmail attempt. Publication of your photograph may also be restricted if the person who possesses it has undertaken a duty of confidence to you, if they are a large corporation covered by Australia's Privacy Act, or if the use of the photograph is defamatory, fraudulent, or involves some other breach of the law.
However until Australia introduces legislation such as that being considered in America, there remains a notable hole in the law that needs to be addressed.