Photographing people: consent, releases, and what the law really cares about

It is a popular myth that Australian law requires a 'model release' to photograph a person, or that everyone has the right to control the use of their image. Neither is correct as a general rule. The protection sits in a small number of established doctrines that get triggered only by specific facts.

Defamation

If publishing the photograph (together with its caption, context or surrounding text) imputes something defamatory of the subject, the subject can sue under the uniform defamation legislation that applies in every state and territory (for example the Defamation Act 2005 (NSW), the Defamation Act 2005 (Vic), and equivalents in other jurisdictions; substantially harmonised by the Model Defamation Provisions and subsequent 2021 amendments).

A defamatory imputation can arise from the framing of an image as easily as from words. A photograph of a person walking out of a building together with a caption suggesting wrongdoing has historically given rise to claims.

Australian Consumer Law section 18

Section 18 of the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) prohibits, in trade or commerce, conduct that is misleading or deceptive or likely to mislead or deceive. Using a person's image in an advertisement in a way that implies endorsement of a product they have not endorsed is the classic example, and it does not require any 'right to one's image' to be made out.

Henderson v Radio Corporation Pty Ltd [1960] SR(NSW) 576 was the early Australian recognition that using a person's persona in a commercial context could amount to passing off; section 18 of the ACL now does much the same job in a broader form.

Breach of confidence

Where information (including an image) is communicated in confidence and the recipient publishes it, the equitable doctrine of breach of confidence may apply. The Victorian Court of Appeal in Giller v Procopets [2008] VSCA 236 awarded damages for distress arising from the distribution of intimate footage on this basis. The doctrine has been used to protect medical, family and intimate images where there was an obligation of confidence.

Privacy Act and APP entities

The Privacy Act 1988 (Cth) and the Australian Privacy Principles regulate the collection and handling of personal information by Commonwealth agencies and most private sector organisations with annual turnover above A$3 million. A photograph that identifies an individual can be personal information. Independent photographers and very small businesses are generally outside the scheme, but media organisations and platforms with bigger turnover are not.

When a release actually matters

Even though Australia does not require a release as a matter of general principle, releases matter for two practical reasons: they remove ambiguity about consent (relevant to breach of confidence and to ACL section 18), and stock libraries, ad agencies and brands insist on them as a condition of licensing. A release is also strong evidence of consent if a defamation question arises.