So you’re at the Royal Botanic Garden – your first destination at the Vivid Sydney Festival. You walk along the garden with your phone. You’re ready to film the moment when something fascinating flashes before you. Suddenly you’re greeted by one of the first creations. With childlike wonder you hit the record button. You capture the entire landscape, including the people moving in and out of your shot. But is it legal to film in a public place?

Is It Legal To Film In A Public Place?

There is currently no law in Australia that prohibits you from filming in a public place without asking for permission. This extends to recording buildings, sites and people. However, depending on the rules in the location you’re in and the purpose for which you’re filming, your conduct may amount to a criminal offence. Here are a few tips that may help you determine whether or not to hit the record button.

1. Check If The Location Is A Public Place Or Private Property

Generally, there are different rules for recording in a public place and on private property. A public place is considered a social space that is open and accessible to everyone, such as a park or road. If a person does not want to be filmed, they cannot demand you to delete your footage. Instead, they can cover their face with their hand so they cannot be seen. But this does not mean you can freely record videos in a way that people around you will view as offensive or a nuisance. Ultimately, you can get into trouble if you’re in a place where privacy is expected. For example, if you’re filming people in a public changing area or people in their swimming costumes at the beach or public swimming pool.

2. Check If There Are Rules Or Restrictions

In contrast, private property is a space where the landowner can set rules and impose restrictions. For example, private residences, shopping centres, sporting grounds, museums, art galleries, schools, casinos, etc. You may only be allowed to film certain objects or locations. Even though you cannot be charged for breaking their rules, you can be kicked out of the premises, or even banned.

Consider the Art Gallery of NSW. On their website it states you can film, except if a special artwork or exhibition has a sign indicating no photography. If you want to film for publication or commercial purposes, you must make a written request.

Also, please be aware that recording artworks can break copyright laws. Although the landowner allows you to film, he or she may not be the copyright owner of the artistic work. You may need to ask permission from the author of the artwork.

3. Ask Yourself For What Purpose Are You Filming

If you’re recording in a public space for personal use or commercial purposes, then you don’t have to obtain permission from the person you’re filming or the council. Personal use means use that is not commercial, whereas commercial purpose is when you’re filming for financial gain or for a business and footage will be used to promote goods or services.

If you’re filming for a commercial purpose, you may need to obtain permission from the people who will be in your footage and the landowner of the building. This is because there are protections in the Copyright Act 1968 (Cth). If you fail to do so, then you may be at risk of breaching copyright or the Australian Competition and Consumer Commission (ACCC) may issue you a fine.

Let’s say you’re a tourist filming outside the Sydney Opera House. You don’t need permission from people in your film, management or Sydney City Council. So long as your footage is used for personal use, you’re entitled to film.

Alternatively, if you’re filming in a public place, such as a national park, that is owned by the NSW Government or a council, then a licence may be required if you intend to use the video for commercial use or business purposes. For example, on the NSW Government’s Office of Environment And Heritage website states you need approval and a filming and photography licence. Otherwise, the Filming Approval Act 2004 (NSW) makes filming permissible, and approval will be granted, if it is not prohibited by the park’s plan of management.

Conclusion

Next time you decide to record a film in a public or private place, you must double check if there are any rules or restrictions, and whether the purpose for which you’re filming requires you obtaining permission.

Fiona Lu

Fiona is a Paralegal working in our content team which aims to provide free legal guides to facilitate public access to legal resources. With an interest in information, media, consumer and employment law, her primary focus is on how technology will affect the future of the legal industry.