Is It Legal To Film In Public Places? (2020 Update)
Filming in public places can seem perfectly legal, but there are circumstances where this could get you into legal trouble.
So you’re at a picturesque beach, the kind you’ve only seen on postcards. A big part of capturing this memory is recording what you see on your phone. There are other tourists at the beach that would appear in the film. This may seem innocent enough, but there are circumstances where filming in public places is in fact, illegal. In this article, we’ll discuss the guidelines around whether you can film in public places and how to ensure that you’re not inadvertently breaking the law.
Filming in public places in Australia
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 even people – but not artistic works. This means that you should be careful not to film something that is protected by copyright. You should also always keep a look out for signs that prohibit film or video recording. If this is the case, then you may be fined for filming. Even if you’re filming somewhere where it is perfectly legal, your conduct may amount to a criminal offence if it is disruptive to others. Here are a few tips that may help you determine whether or not to hit the record button.
1. Make sure you’re not filming on private property
Generally, there are different rules for recording in a public place and on private property. A public place is a social space that is open and accessible to everyone, such as a park or road. Generally, you have free reign over what or who you can film when it public. If someone does not want to be filmed, they cannot demand you delete the footage. But this does not mean you can film in public places in a way that people around you will view as offensive or a nuisance.
2. Check the rules
By contrast, private property is a space where the landowner can set rules and impose restrictions. An example of this is private residences and shopping centres. You may be allowed to film these locations from the street, but depending on where you are, this may be illegal. If you illegally film in these places, you can be ejected or even banned from re-entering. Further, you may also be trespassing if you have entered the property without the permission of the owner. Asking the owner or looking for signs prohibiting filming will help you ensure that you’re not doing anything illegal.
3. Why are you filming?
If you’re filming in public places for personal use, then you don’t have to obtain permission from the person you’re filming or the council. Personal use means that you are filming for your own enjoyment. Alternatively, if you’re filming for financial gain or for a business, then you are filming for a commercial purpose. However, many public events such as music concerts may have policies which prohibit filming. This is usually because filming this type of event will often be in breach of copyright of the artistic work that you’re filming. 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 for personal use, you can film. Alternatively, if you’re filming in a public place that is owned by the NSW Government or a council, then a licence may be required. 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. Approval will be granted if it’s not prohibited by the park’s plan of management.
Privacy when filming in public places
In Australia and overseas, it is generally illegal to film a person in public where there is an expectation of privacy. This includes places such as bathrooms, change rooms and AA meetings. This has also relatively recently been extended in the law to include ‘up-skirting under section 91L of the Crimes Act 1900 (NSW). Filming people in an intimate context is illegal, unless express permission is granted. Further, although there are no laws prohibiting photography of children in public places, this is still a larger ethical issue. The principle here is that although filming in public spaces is legal, you must still respect the privacy and autonomy of other people and not use your film for voyeuristic purposes.
It’s important to understand that different countries have different rules when you film in public places. Many of these rules involve filming the military or other government-administered places. For example, many museums do not allow you to film inside, despite the fact that they are public spaces. If this is the case, you should be able to see a sign which states that filming or photography is prohibited. Further, there are sometimes instances where filming something that seems like public property is technically illegal. For example, copyright protection means that filming the Eiffel Tower in Paris at night is illegal. This is because it’s an ‘artistic work’ and duplicating and sharing it is in breach of French intellectual property laws.
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. It’s important to check whether the purpose for which you’re filming requires you to obtain permission. What’s important here is who you’re filming, why you’re filming, and whether the place you’re filming in holds any historical or national significance. Filming in public is generally legal, however it’s important to understand the circumstances where it’s not.
Jackie is the Content Manager at Lawpath and manages the content team. She has a Law/Arts (Politics) degree from Macquarie University and is an admitted solicitor in the Supreme Court of NSW. She's interested in how technology can help shape the future legal landscape.