A few nights ago on SBS Insight (October 25th, 2011) a discussion took place around the very topical issue of protecting the privacy of the individual in public spaces.

The federal government is currently looking at whether to introduce legislation that will make it possible to sue someone for a serious invasion of one’s privacy. But this is a highly complex issue and drawing the proverbial line will surely prove extremely challenging.

Federal Privacy Commissioner Timothy Pilgrim asserts that the public is defining ‘privacy’ in much broader terms than the Privacy Act legislation currently recognises. Richard Gilbert, Chief Executive of the Rule of Law Institute of Australia suggests that privacy is not of increasing concern and that a statutory course of action for breaches of privacy would effectively limit free speech.

There is a vast array of scenarios involved here affecting different people, depending on the way they live and the public places they frequent. Such real-life examples include security cameras in private housing, facial recognition technology utilised in nightclubs to record and identify patrons, and cases of media intrusion. In addition to the multiplicity of issues, a further matter for debate is that ultimately what one person deems as harmless could cause great discomfort in others.

The discussion as it relates to photography in public involves everyone and we are likely to see a divide between photographers and the general public as we seek to find balance between ones complete and total ownership of their image and an artist's right to self-expression.

At the centre of the photography vs privacy debate was Sydney based Documentary/Art photographer Cherine Fahd. Cherine received a grant from the NSW Government in 2005 to undertake what has become a highly controversial series titled ‘The Sleepers.’ This series captured in Sydney’s King’s Cross and photographed on a video camera, featured 20 images of the homeless, travellers and even occasional locals who came to rest in the park just across from Cherine’s 6^th floor apartment.

When the program concluded, viewers’ comments flooded in and the conversation largely centered on a philosophical debate over the true definition of terms such as privacy, public interest and art.

There are already laws and protections in place to prevent the misuse of photographic images, though they are admittedly understated. The Arts Law Centre of Australia lists this information on their website (http://www.artslaw.com.au). Generally speaking it is well within the law to take a photo of a person or people out in public without first asking permission. The only case to succeed before the Court under the Tort of invasion of privacy involved a history of harassment over many years and is not what is being debated in this article – this is deserving of an independent discussion.

Where the photography of people in public becomes an offence, while outlined in legislation, is grounded in common sense. Anytime a person is in a situation where a reasonable person would reasonably expect to be afforded privacy, permission must be obtained prior to taking a photo. Such situations are stipulated to include: using the toilet, bathing, undressing or engaging in sexual activities not normally undertaken in public – not beyond the realm of logic for most.

There is no argument here that public opinion should bring about continued debate and revision of the laws that protect us all. People unquestionably deserve the right to their reputation and children should certainly be protected, but to disallow any form of photography in public without first obtaining consent from people who happen to be in the frame is arguably a protection gone too far.

For those who support the notion of strong and heavy restrictions being placed on public photography consider this; Realistically, you will never again be able to take a family photo, a picture with your friends or capture a special moment with your partner while at any local beach or park - unless it happens to be entirely deserted. Granted professional photographers will be able to utilise careful composition and control over depth of field to exclude members of the public from an image but this means little to the everyday happy snapper.

Artistic expression will be severely limited – unless we are satisfied with photographic exhibitions only ever consisting of staged photographs. Moreover, such a ‘protection’ represents a potential threat to the documentation of both everyday life and historically significant moments in the present and future.

We welcome all thoughts and feedback on this matter but will pose the question:As far as photography is concerned, what do YOU consider to be a breach of privacy?

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