Online privacy

Privacy issues arise almost every day. They have become more common with the growth and use of technology in our everyday life. Even sharing the most basic information about yourself online, like your name and birth date, may put your privacy at risk. In addition, posting or sharing intimate and private photos of others can be, even just as a joke, a very serious crime in Australia.

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Unauthorised use of your photo/video

An unauthorised use of your image happens when someone takes a photo or video of you and shares it without your permission. In Australia, there is no general right to privacy. This means there is no law which prevents an image of you being used without your permission (except in particular circumstances set out below). However there are steps you may be able to take if you think images of you are being used online or elsewhere without your permission. If the image or video contains explicit or private conduct of you, the law may be of more assistance. Please get free legal advice, if this has happened to you.

There are no laws preventing an individual taking your photo in a public place and posting it online.

But if someone has taken a photo of you while on your property, you may be able to take legal action against them for trespass to prevent the photos from being used or published.

What to do if you come across a picture of yourself being used without your permission online

There are no specific laws within Australia preventing someone taking your photo or video in a public place and then posting it online (unless the photo or video shows you doing something private – see below).

Steps to take

What to do if you come across a picture of yourself being used for advertising purposes

The Australian Consumer Law prevents companies and businesses from misleading and deceiving consumers. This means that a company cannot publish an image or video of you promoting something without your permission. If someone wants your permission to publish your image for this purpose, you will usually be asked to sign a waiver.

Steps to take

  • Ask the person or company who is using your photo for commercial purposes to remove it. For example, if you see yourself in an image or video promoting a business or a product and you did not give permission, you can contact the company or advertising agency and ask them to remove it.  
  • You can lodge a complaint with the Advertising Standards Board. Their website is: https://adstandards.com.au/
  • You can also make a complaint to the Australian Competition and Consumer Commission (ACCC). Their website is: http://www.accc.gov.au/
  • You can also make a complaint to WA Consumer Protection – Department of Commerce. Their website is: https://www.commerce.wa.gov.au/consumer-protection

What to do if someone has taken a photo/video of you doing something private

If you are under the age of 16 and someone has taken a nude photo or video of you or a photo or video of you doing something sexual this can be considered a crime. It is a crime to involve children under 16 in creating sexual photos or videos and it is also a crime to create or publish these photos or videos or send them to others.  

It is also a crime to use the internet to record someone or share images or videos of that person without their permission if the material shared would be regarded as harassing or offensive.

Other offences

a) Unauthorised recording using a surveillance device

In WA, it is against the law to use a device to record or monitor the private conversation of another without their consent. It is also against the law to use a device to film or observe a private activity without consent of the participants of that activity. However, it is legal to record a private conversation if:

  • One party (eg the person recording the conversation) agrees to the recording; and
  • The recording is made to protect a lawful interest.

In WA it is illegal to publish a conversation or activity that has been secretly recorded with a device or to send that recording to others without the consent of all parties involved in the conversation or activity.

b) Companies using your private information and data

Organisations such as national Government agencies, large businesses, health service providers and credit reporting agencies have specific obligations when dealing with your personal information.

Personal information that is protected by the law includes information about you such as your name, signature, address, telephone number, date of birth, medical records and bank account details.

Legally, before such organisations can collect and store your personal information, they must have a clear privacy policy, they must offer you an option of not identifying yourself if you choose not to (except in some limited circumstances) and they must only collect information that is necessary for them to provide their services, or directly related to one of their services.

Further to that, sensitive information can generally only be collected from you with your permission. Sensitive information includes information about your race, political opinions, membership to a political organisation, religious beliefs, sexual orientation, criminal records and information about your membership to a trade union or trade association.

The above organisations are also required to provide you with information about the way in which they use your personal information. This includes why they collect your information, to whom they disclose your information, details about how you can see what personal information is held hold and details about other complaints process if you think any of the above principles have not been followed.

Organisations are generally not allowed to use your personal details for any purpose other than exact purpose for which it was collected. So, if an organisation such as your internet service provider collects your phone number for the purpose of contacting you about their service, they would not be allowed to use your number for any other purpose. Organisations are also not allowed to use your contact details to send you marketing material unless you have given your permission.

Organisations must also try to make sure that the information they hold is accurate, that it is held securely and that any inaccurate information held is corrected. Generally, organisations must also give you access to the information that they hold about you if you ask for it.

Steps to take

If you think your personal information has been misused by an organisation, then you can make a complaint to them. If they do nothing about your complaint, you can complain to the Office of Australian Information Commissioner (OAIC) and they will investigate your complaint.  You can find out more information about your privacy rights and how to make a complaint on their Website at http://www.oaic.gov.au/individuals

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