By Jesse Hyland and Nick Visser
A Sydney woman says she found it “violating and disgusting” when her interaction with a man wearing sunglasses with a camera was posted by a US content creator to his 1.3 million Instagram followers.
Lawyers and privacy advocates said the case was an example of why Australia needed to enhance its laws to protect people from being filmed without their consent.
These are your rights when it comes to being filmed or recorded in public.
What are my rights if I’m filmed?
Anna Bunn, a senior law lecturer at Curtin University, said each state and territory had its own surveillance devices laws that dictated what people’s rights were.
“There are differences between them, but the commonality is that they basically apply where a surveillance device is used to record a private conversation or a private activity,” she said.
“The problem is that there’s a lot of doubt about whether they ever apply when someone’s in a public place.”
Under the Surveillance Devices Act in NSW, which repealed the former Listening Devices Act in NSW, a person must not knowingly install, use or cause to be used or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is or is not a party.
There could be other circumstances where the law is applicable.
“They may apply, especially if someone’s been recorded, through the window of a house, for example,” Dr Bunn said.
When it comes to the location, Dr Bunn said there were “more options” for people being filmed inside a private business or home compared to a public place.
“It depends on the situation or the state, but the Surveillance Devices Laws may apply, and then people have recourse to things like trespass, so you can kick someone out if they’re breaching the condition of the premise,” she said.
“There are more options when someone’s in a private space to control what happens within that space, than there is in a public place.”
Laws could also apply when someone is being harassed, such as cases where someone is being chased or followed, or filming people in a private or intimate context, which can include recording in bathrooms or upskirting.
UNSW cybersecurity expert Richard Buckland said under NSW laws, for example, it was more egregious to record someone on audio.
“Recording someone talking when they reasonably would expect that conversation to be private under the Listening Devices Act in New South Wales — that’s not allowed, that’s an offence,” he said.
“But video, that’s different. There’s very, very little to prevent you recording people in public places.”
What about my right to privacy?
Some states have a Human Rights Act that includes a right to privacy, according to Dr Bunn.
However, there is no overarching right to privacy enforceable through the law at a national level.
“There’s not that much that can really prevent someone from filming, either overtly or covertly,” Dr Bunn said.
That’s especially true as technological advances lead to recording devices getting smaller and smaller.
What about hidden recording devices?
Ausma Bernot, a lecturer in tech and crime at Griffith University, said there was a major difference between seeing a video camera or larger recording device in public you can walk away from and a covert piece of technology you may never know is there.
Dr Bernot said tech companies were pushing for innovation and “not necessarily wanting to think about the unforeseen uses of these glasses”.
The glasses believed to have been used by the US content creator who was recently in Sydney, were developed by Mark Zuckerberg’s Meta, the owner of Facebook, Instagram and WhatsApp.
“From Meta’s point of view, really what Mark Zuckerberg is trying to build is something really new and really cool,” she said.
Dr Bernot, who is also a member of the Australian Privacy Foundation, added the public had a responsibility to understand the consequences of using new devices like smart glasses, because such technologies were impacting life in public spaces.
But she said new legislation should be interpreted to place the burden of responsibility more on companies than the public.
“We never really asked for this, it just flopped into the market,” Dr Bernot said.
What can I do if I’m filmed?
If you do see a video of yourself on the internet without your consent, Dr Bunn recommends contacting the site and the owner of the video to take it down.
However, Dr Bunn said research had also shown content was often not removed by social media companies, even if it breached their guidelines.
If someone is being cyber bullied or harassed, another potential avenue would be to contact the eSafety commissioner to request an intervention.
People who have been filmed can also go to the police, who, according to Dr Bunn, would decide whether to “bring charges under the criminal device laws”.
“I suspect they’re [police] generally reluctant to even do that where something’s occurred in public, but that certainly would be up to the police,” she said.
If the video or image of the individual is intimate, it’s recommended people report it to the police.
What experts want to see
Dr Bunn said Australia needed “stronger protections of image” even where the protections don’t depend on whether the image is private or the publication breaches an expectation of privacy.
“From a practical and pragmatic point of view, there’s lots of difficulties with that kind of law in terms of enforcement, especially when we’re talking about social media companies that are offshore and individuals who are outside the jurisdiction,” Dr Bunn said.
Dr Bernot said legislation had not dealt with the spread of internet-connected devices well.
“It can be written in a technology-neutral way … but it is not often predicting future threats or harms,” she said.
“The majority of responsibility, in my view, should lie with the technology companies being made responsible for the unwanted surveillance of people and the negative effects on their wellbeing.”
Mr Buckland said he “absolutely” wants to see Privacy Act updates, saying he believed people “really don’t value privacy highly enough In Australia, and it’s not informed”.
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If it takes place in a public place, the law should regard it as public and not private, and therefore accessible to anyone. If you are a party to a conversation, you should, along with the other parties to that conversation, be able to record and use that conversation as you see fit unless there has been a specific stipulation otherwise by one of the parties. The assumption at all times is that you are being filmed and recorded, if not by a party to the conversation, then by one of the many arms of our and other Governments which have thousands of cameras out there, with numbers growing exponentially and now being analysed by AI as is now all pervasive in China
What about police filming & recording audio, particularly when it is shown on TV?