Question: A contractor working outside my property took a photo of the inside of my lot. What are my options? Is this a privacy breach?
Our strata manager informed me that a contractor took a photo of the inside of my lot. The contractor was working on the back fence, not inside my lot. I was unaware of the photo. I’ve requested to see the photo, however, the email can’t be located. What are my options? Is this a privacy breach?
Answer: There is no common law right to privacy in Australia.
As a starting point, there is no common law right to privacy in Australia. It can be protected in certain circumstances, however, these typically arise as an incident of another part of law.
Most typically, this will arise where a photograph or video has been obtained during a trespass onto private property.
In the example given, the photograph that was taken occurred while the contractor was presumably permitted to be on the property.
That being the case, there is not an existing trespass to serve as a justification for a finding that the photograph was taken “illegally”, which would then give a basis to seek an injunction against the person who took the photo.
If the contractor was on the property without consent (trespassing), there may be an entitlement to seek an injunction against the photographer. This is not always going to be ordered, however, and the court weighs up what the potential harm is to the individual by the dissemination of the photo.
Refer Young J as he then was in Lincoln Hunt Australia Pty Limited v. Willesee (1986) 4 NSWLR 457 at 463:_
_“[I] am of the view that the Court has power to grant an injunction in the appropriate case to prevent publication of a videotape or a photograph taken by a trespasser … However, the Court will only intervene if the circumstances are such to make the publication unconscionable.”
This post appears in Strata News #697.
Paul Wiseman Bannermans Lawyers E: enquiries@bannermans.com.au P: 02 9929 0226