This page explains the laws that might apply when you use your phone to take a video, picture or voice recording. It also explains what you can do to stay out of trouble as well as your options if someone takes an inappropriate photo or video of you.
For free and confidential legal advice about this topic, please contact us here.
In most cases, it’s not ok to record a private conversation—even if you are a part of it.
A private conversation is a discussion that’s meant to stay between the people involved. In most states and territories, a conversation is not considered private if the people involved should reasonably expect that someone could overhear it–for example, if they were talking loudly around other people. But in some states and territories, a conversation can still be considered private when a third person overhears it, as long as those involved in the conversation know that the third person can hear it.
While the laws are a little bit different in each state and territory, in most cases, it’s illegal to use your phone or another device to record a conversation without the knowledge and permission of everyone involved. It is illegal to publish the private conversation whether or not you were a part of it–for example, by posting it on YouTube.
There are different rules for photographing or recording things depending on where you are. The rules that apply depend on whether you are on public or private property, and sometimes on the specific rules of a place.
A public place is a social space that is open and accessible to all, like a park. Generally, you have a right to take photos and videos of public places and the people within them. But if you are taking photos or videos in a way that is offensive or a nuisance to those around you, this can be a crime. For example, even though most beaches are public places, you can get in trouble for taking photos of people in their swimmers without their permission.
Private property is a space where the owner can set rules or restrict entry. This includes homes, shops, sport and performance venues, museums and galleries, schools and similar places. These places can make rules that ban people from photographing or recording any part of the space or the people within it (unless they can be seen from a public space). Even if they don’t have specific rules, keep in mind that taking photos or videos of art or performances can break copyright laws.
There are some things that you are never allowed to photograph or record no matter where you are.
It’s never ok to take (or post/send/keep) an image of someone under 18:
This kind of image is called “child pornography” or “child exploitation material”, and is illegal even if the person in the image says it’s ok. This law applies throughout Australia.
If you’re under 18 and accused of taking (or having/sending) this kind of image, the law does offer you some protection—the federal police must get special permission before you can be found guilty of breaking national child pornography laws. The local police do NOT need to get this permission before charging you under similar state and territory laws, so be sure to check out the laws that apply to you on our website.
Asking for, taking, posting or sending a nude/sexy image of a young person can also be illegal if it’s considered “indecent”. Usually, something is considered “indecent” if it is sexual in a way that the average person finds offensive. For example, in December 2010, a teenager in NSW was found guilty of an indecency crime for encouraging a younger girl to send him a “hot steamy” photo.
For more information check out our Sexting page.
It’s never ok to photograph or record someone’s private activities or private parts without their knowledge or permission.
Private activities normally include things like undressing, using the toilet, showering or bathing, or doing a sexual act in a place where a typical person would expect privacy. The laws ban things like “upskirting” (snapping a photo up somebody’s skirt without their permission) and setting up cameras in changing rooms or bedrooms.
Most states and territories have specific laws against taking photos or videos of this kind. Under the law, private parts include a person’s genital or anal area (in some cases even when covered by undies).
The maximum penalty for these crimes is 1 to 5 years in jail depending on the state or territory you live in. In some states, the penalty is higher if the victim is a young person.
Even in states and territories where there is no specific law about taking photos or videos of private parts or activities, there are other laws that might apply. For example, every state and territory has laws against stalking. While stalking is defined differently in each state, it covers most forms of repeated harassment that are likely to harm or scare a person–including filming their private parts or activities without their knowledge. For example, in April 2013, a 20 year old guy in Queensland was charged with stalking and other crimes for using a mobile phone to film a teenager in a public toilet. The maximum penalty for stalking can include jail sentences of 10 years or more, depending on the state or territory you live in.
If someone uses the internet to record or live stream a person without their permission, this could also be a crime. For example, in August 2013, two young ADF cadets were found guilty of using the internet in a harassing and offensive way after one of them live streamed himself having sex with another teenage cadet (without her knowledge or permission) so his friends could watch through Skype. The maximum penalty for this crime is up to 3 years in jail.
Even if the private part or activity isn’t recorded using the internet, if it is later posted or sent online, this could also be against the law. For example, in October 2011, a 20 year old guy in NSW posted six nude photos of his ex-girlfriend on Facebook as revenge for breaking up with him. He was found guilty of publishing indecent material and given a suspended sentence of six months. Laws have recently been passed in Victoria which make it a crime to share, or threaten to share, an intimate photo of someone without their consent.
Publishing an image like this could also be considered defamation. Defamation happens when someone hurts another person’s reputation by spreading false or humiliating material about them. While defamation can be a crime in extreme circumstances, it is most often a basis for suing someone in court. For example, in Queensland, a guy sent a naked photo of his ex-girlfriend to a nudie magazine as revenge, and the magazine published the photo along with embarrassing commentary. The ex-girlfriend sued for defamation and the court ordered both the ex-boyfriend and the magazine to pay her compensation for the humiliation she experienced.
When a person tries to blackmail somebody by threatening to publish photos or videos, other laws can apply.
It’s never ok to use a photo or video to cyber bully someone.
If someone is sending offensive or humiliating photos, videos or recordings about you to you or other people, this can be a form of harassment or stalking. This is a crime.
It is usually best to:
talk to a trusted adult or get help here.
If someone keeps bothering you on your phone, you can report them to your phone company. They may be able to send a warning letter telling the person to stop.
If someone keeps bothering you online, you can block them or report them to the website that they’re using to contact you.
Using a phone or internet service to bother someone could be a crime. You can report this to the police or consider applying for a protection order (see below).
It is usually best to:
If the police get involved, you should contact Legal Aid as soon as possible for free legal advice.
If you ever want to talk to anyone about anything that’s bothering you, you can contact Kids Helpline on 1800 55 1800. You can also:
If you have a problem or a question, you can send it to us today and we can provide you with free advice, information and referrals to help solve your problem. Just click on the button below.Get help now