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Follow-up question to Is it legal to photograph someone in public after they explicitly withhold consent?

From the above question, it's legal to photograph someone in public even if they withhold consent. Does the same thing apply to private settings?

From what I've seen, the property owner can legally require a visitor not to take photographs on their property, and eject them from the premises if they refuse. However, I can't find anything about whether the owner of the property can legally photograph the visitor. For example, suppose I tell my brother I don't want him to photograph me, and he agrees not to do it, so I visit his house. Once I step inside I discover that he's got cameras set up and photographed me already. Can I e.g. legally require him to delete the photos (in addition to removing myself from his property, of course)?

I'm interested in all jurisdictions.

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  • It is important to distinguish although difficult in practice to distinguish, between photos taken without someone's consent in private, and photos taken without someone's knowledge in private (which is sometimes illegal). If photos are taken with someone's knowledge and they have the ability to leave but do not, this also may be implied consent, while photos taken of someone with their knowledge when they have no option to leave (e.g. in prison) may be a different matter. There is also the issue of whether the person taking the photos agreed not to take them which is distinct from consent.
    – ohwilleke
    Oct 25, 2023 at 23:21
  • Normally I'd accept an answer, but with all three answers having equal votes, I don't know which one to accept.
    – Allure
    Oct 27, 2023 at 1:21

3 Answers 3

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You conveniently ignored the "No" answer to your question about public photographs taken in your summary here.

It might not surprise you, given that you cannot just be photographed out in public against your will (assuming none of the mentioned exceptions apply), that the right to your own picture is not impeded by whose property you are on when that picture is taken or what the relationship of the person taking the picture to the property owner is. The right to your picture is yours, whether you stand on the public street or stepped 20cm onto someone's driveway.

Consent is assumed when you are made aware of photos being taken and you enter the property anyway. For example a supermarket with a big "we videotape you in here" sign on the entrance. However, it is also assumed that those pictures are taken for a valid purpose, will not be used for other purposes and will be deleted after no longer being necessary for the purpose. In case of the supermarket it is assumed you consented to being videotaped for the purpose of theft prevention and security, at least that is what all the signs said that I ever saw. You never consented to having excerpts of your clumsiness being shown on youtube as "stupidest customers this month". That would be illegal use, even though they have a right to take your picture for their original purpose.

So this is about being informed about it prior to taking pictures and the assumed consent for the stated purpose by affirmative action of going ahead and letting the picture be taken instead of turning around and not entering the property.

That said, the property owner explicitely lying to you, there can be no consent, not even assumed consent or any grey area. Taking pictures of you while you are not aware of it has no legal basis.

While I doubt the Police will come and arrest anybody, if people snapped a picture of you at a party, that you don't want them to have, legally, they'd have to delete it.

There are many specific laws at play here when you consider severe cases (person drunk, naked, on the toilet, underage etc) but for lighter cases (person just did not want to be photographed) it is included in the general laws about personal rights. You can read all about it for example here: https://de.wikipedia.org/wiki/Recht_am_eigenen_Bild_(Deutschland)

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  • Do you know which laws are at play here (for both my clumsiness ending up in a "stupidest customers this month" video, and for the pictures taken at a party)?
    – Allure
    Oct 25, 2023 at 7:34
  • I added a paragraph about the laws. The "For a purpose" part is the GDPR (which existed in German laws for way longer than what you today know as "the GDPR"). If the supermarket has no valid purpose for taking that picture, it should not. If the valid purpose expired, data has to be deleted. Doesn't matter if it's pictures or addresses or payment information.
    – nvoigt
    Oct 25, 2023 at 8:31
  • And obviously, "theft protection" is a valid purpose, "humiliating random customers" is not, it would at least need written consent from each of them if you don't want to give the company lawyer a heart attack.
    – nvoigt
    Oct 25, 2023 at 8:33
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Yes, it’s legal

There is no general right to privacy in Australia. The Privacy Act 1988 (Cth) is wonderfully out-of-date and, its definition of personal information doesn’t include photographs and, in any event, it only applies to governments and large corporations.

There are specific circumstances where it is illegal to use and sometimes to take such a photo without permission:

  • if the photographer is trespassing, you may be able to prevent the use of the photo
  • if sharing the image would be offensive or harassing
  • if it shows a minor engaging or appearing to engage in sexual activity, it can’t be taken, kept, or distributed
  • in most states, if it shows a person’s private parts or engaging in a private act
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For example, suppose I tell my brother I don't want him to photograph me, and he agrees not to do it, so I visit his house. Once I step inside I discover that he's got cameras set up and photographed me already. Can I e.g. legally require him to delete the photos (in addition to removing myself from his property, of course)?

Taking a photo with someone's knowledge but not consent at a place that they are free to leave is normally legal.

But in the face of an agreement not to take photos that made the opportunity to take photos posssible, doing so is probably actionable, either as a breach of contract, or on a promissory estoppel theory (in which a promise not supported by consideration is supported by actions taken in reliance on the promise). The damages might be minimal, but one can imagine circumstances when they might be more substantial (e.g. the photos resulted in a loss of a modeling contract or a contract to act as a spokesperson for a company).

It might be possible to obtain a court order to have the photos destroyed if they were taken in breach of an agreement not to take photos. Once there is an agreement not to take photos, this becomes similar to an ordinary non-disclosure agreement which was breached.

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