Photographing and Filming Tenants’ Possessions for Advertising Purposes: Consultation Paper

1. Introduction

The issue

1.1 Victorian tenants have expressed concern about photographs of their possessions being used in advertising campaigns when landlords are selling or re-leasing their properties. Tenants’ concerns relate to the failure to provide adequate notice that photographs will be taken, as well as to the content of the photographs. Some tenants were not told in advance that photographs would be taken and thus were not given the opportunity to move any valuables or personal items out of sight. Others say the use of the photographs in advertising material violates their right to privacy, places them at risk of theft and, in some instances, places them at risk of personal harm.

1.2 The Commission’s review also includes videos of tenants’ possessions, as tenants’ concerns about photographs equally apply to videos used to advertise properties for sale or lease. For some, videos may be even more intrusive, as they allow the public to see rooms in their entirety, which in turn might assist potential intruders to identify entry and exit points. In addition, videos may become increasingly common with changes in technology and market expectations.

1.3 Despite the frequency with which photographs and videos containing tenants’ possessions are taken and used when landlords advertise their properties for sale or lease, the rights and obligations of landlords and tenants in this situation are not clear under Victorian law. The Residential Tenancies Act 1997 (Vic) does not expressly refer to the practice of taking or using photographs or videos of rental properties for advertising purposes. It does, however, set out the grounds upon which landlords may enter a rental property, and the notification and behavioural requirements landlords must adhere to when entering.^[1] The Act also enshrines the tenant’s right to quiet enjoyment.^[2] Opinion is divided on the extent to which these provisions allow landlords to take and use advertising photographs and videos that contain tenants’ possessions without the tenants’ consent.

1.4 With the widespread use of online advertising, the issues of privacy, intrusion and risk in relation to advertising photographs and videos that contain tenants’ possessions are exacerbated. Between November 2012 and January 2013, Australia’s most viewed real estate website received an average of 18.6 million visits per month.^[3] In this environment, it is in the interests of tenants, landlords and agents that the law and their respective rights are clear.

1.5 The minister responsible for introducing the Residential Tenancies Act 1997 (Vic) into Parliament in 1997 said that ‘residential tenancies legislation is vital in striking a balance between the interests, rights and responsibilities’ of those who own rental properties and those who ‘make such accommodation an appropriate home for themselves and their families.’^[4] This paper provides guidance on what this balance currently is in relation to photographs and videos of tenants’ possessions. In the course of its inquiry, the Commission will consult with interested individuals, groups and organisations to determine what that balance ought to be.

1.6 Lawmakers in Queensland and Tasmania recently reviewed their residential tenancy legislation. In 2008, Queensland adopted legislation prohibiting the use of images of tenants’ possessions in advertising material without the tenants’ consent.^[5] Last year, Tasmania followed suit.^[6]

1.7 The purpose of this inquiry is to recommend legislative reform that accords with the needs and priorities of tenants and landlords in Victoria, and we welcome public feedback in this regard.

Origin of this project

1.8 As well as investigating issues given to it by the Victorian Attorney-General, the Commission initiates its own investigations into ‘relatively minor legal issues that are of general community concern.’^[7] ‘Relatively minor’ means of limited size or scope. The Commission refers to these inquiries as community law reform projects as the topics of inquiry are proposed by community members and groups.

1.9 This project arose out of discussions with the Tenants Union of Victoria (TUV). The TUV informed the Commission that:

• It had received a number of complaints about photographs of tenants’ possessions being included in advertising material without the tenants’ consent.

• The law was unclear with respect to the rights of landlords and tenants in this situation.

• Tenants often sought assistance from advice and complaint-handling bodies that were not able to help them prevent the photographs being taken or, if already published, have the photographs removed.^[8]

1.10 After consulting with several advice and complaint-handling bodies, the Commission was satisfied that a significant number of tenants, landlords and agents had made inquiries about the law relating to advertising photographs that contained tenant’s possessions, and that legal clarity and certainty in this area would be helpful for all concerned.

Background

1.11 A little under a quarter of Victoria’s 1.95 million households privately rent the premises in which they live (24.3 per cent)^[9] and are subject to Victoria’s residential tenancy legislation. According to the TUV, the average length of a tenancy is 18 months.^[10] It is thus likely that private tenant households will have their homes photographed or filmed for advertising purposes at some stage. In many instances, these images will contain tenants’ possessions.

1.12 During the Commission’s preliminary consultations, a real estate agent informed the Commission that although any legal obligation an agent has to a property owner is ultimately paramount, professional agents treat both tenants and landlords as clients.^[11] In part, this is because it is in everyone’s interests to take into account the concerns and needs of both parties throughout the life of a tenancy agreement and, in the event of a disagreement, to find a solution that works for everyone.^[12]

1.13 Moreover, there is an increasing number of relatively affluent renters with high expectations, and many tenants are, or one day will be, landlords as well.^[13] These tenants are in a relatively strong negotiating position because they may be more aware of their rights, and may have greater commercial value to an agent.

1.14 The TUV has noted that whereas renting a property was once a transitional step on the way to property ownership or the housing of last resort for a small minority, it is now a long-term, or even permanent, arrangement for many tenants.^[14] While this may be a choice for relatively wealthy renters, for many of those who rent for long periods it is
a necessity.^[15]

1.15 The TUV has stated that an increase in poverty combined with a decrease in housing affordability over the past three decades has created a large pool of people who struggle to find affordable housing in areas where they can also find work and access services.^[16] In this environment, tenants may be less able to negotiate with their landlords and agents.

Scope of the problem

1.16 Consumer Affairs Victoria (CAV) provides advice to tenants and landlords about their rights and obligations under the Residential Tenancies Act 1997 (Vic). Data supplied by CAV shows that in the three years to June 2013, it received 68 inquiries about advertising photographs containing tenants’ possessions. The majority of these were from tenants, but several were from landlords and agents.^[17]

1.17 Over that same period, CAV received another 247 more general inquiries about photographs taken by landlords or agents at rental properties.^[18] Without more information, it is not possible to ascertain whether those instances referred to photographs taken for advertising purposes, routine inspections or any other purpose. Presumably, however, at least some of those incidents concerned photographs for advertising purposes.

1.18 The Victorian Civil and Administrative Tribunal (VCAT) does not have any record of an application for an order restraining a landlord or agent from using advertising photographs that contain tenants’ possessions.^[19] This may in part be attributable to the fact that CAV advises callers that landlords or agents may take photographs of the inside of the house, and that tenants may ask, but cannot insist, that their belongings or bedrooms be excluded from the photographs.^[20] The TUV says that in the face of this official advice, and with limited resources available to it and many of the tenants who call for advice, it has been reluctant to pursue, or encourage others to pursue, the matter through VCAT.^[21] In addition, tenants may be concerned about retaliation or that a complaint may affect their current or future tenancies.^[22]

1.19 Privacy Victoria regulates how government agencies and local councils deal with personal information. While Privacy Victoria has authority over the Office of Housing, it does not have authority over private individuals or businesses. Nonetheless, it has received a number of calls about photographs and videos of tenants’ possessions in recent years. Privacy Victoria’s Annual Report 2012-13 states:

Enquiries relating to the privacy of property were at their highest recorded level for the past five years at 95 (4% of total enquiries). This rise appears to be attributed in part to the increasing practice of real estate agents photographing or filming rental properties for the purpose of sale and rental inspections.^[23]

1.20 Real Estate Institute of Victoria representatives told the Commission that although tenants sometimes express concerns about photographs being taken, agents work with tenants to allay their fears by, for example, suggesting they remove any valuables from view. None of the representatives could recall a situation in which this issue had turned into a dispute. One agent noted that even if disputes do arise in relation to this issue, the number of disputes would be small as a proportion of the total number of occasions on which advertising photographs with tenants’ possessions in them are published.^[24]

Our process

1.21 The Commission would like your views on the questions raised throughout this paper. A complete list of questions can be found on page 48. While you are welcome to share any views or experiences in relation to the topic under consideration, the Commission will limit the scope of its inquiry to the terms of reference on page vii. The Commission will not review the issue of open house inspections or routine inspections, except in so far as they relate to advertising photographs or videos that contain tenants’ possessions. An in-depth analysis of the right of Victorians to privacy is also beyond the scope of this review.

1.22 The Commission invites written submissions by 11 August 2014. Instructions on how to make a submission are on page v. In addition, the Commission will meet with individuals and groups that have particular knowledge or experience in this area in accordance with the Commission’s principles of being balanced and even-handed. Individuals or groups should contact the Commission if they wish to meet with us in person. The Commission’s contact details are on page v.

1.23 After holding consultation meetings and considering written submissions, the Commission will produce a final report, including recommendations, which will be presented to the Attorney-General.

Structure of this paper

1.24 This consultation paper is divided into eight chapters.

1.25 Chapter 1 introduces the paper and provides background to this project and the issues raised. It includes information on how to participate in the Commission’s inquiry.

1.26 Chapter 2 examines current practice in Victoria. It explores the experiences of tenants, landlords and agents in relation to taking and publishing photographs and videos of tenants’ possessions for advertising purposes.

1.27 Chapter 3 examines the legal rights of landlords and agents to enter a rental property in Victoria and the other states and territories of Australia. In all states and territories, the right to enter to show the property to prospective tenants and buyers appears to be the ground relied upon by landlords and agents to enter a rental property to take advertising photographs and videos. In South Australia, landlords and agents may also rely on the right to enter for a genuine purpose.

1.28 Chapter 4 examines the tenant’s right to quiet enjoyment in Victoria and the other states and territories of Australia. While the scope of this right is confined to the common law in Victoria, all other Australian jurisdictions have expanded its scope to include the right to reasonable peace, comfort and privacy.

1.29 Chapter 5 reviews the right of tenants to privacy in Victoria conferred by the Information Privacy Act 2000 (Vic), the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Privacy Act 1998 (Cth).

1.30 Chapter 6 examines recent legislative reforms in Queensland and Tasmania that prohibit the use of certain images that contain tenants’ possessions in advertising material without the tenant’s consent.

1.31 Chapter 7 lists the remedies available to Victorian tenants who are concerned about advertising photographs or videos that contain their possessions.

1.32 Chapter 8 briefly concludes this paper.

1. Residential Tenancies Act 1997 (Vic) ss 85–89.

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2. Ibid s 67.

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3. realestate.com.au, About realestate.com.au <http://www.rs.realestate.com.au/doc/about_us/About.htm>, citing Nielson Online Marketing Intelligence.

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4. Victoria, Parliamentary Debates, Legislative Assembly, 30 October 1997, 869 (Marie Tehan, Minister for Conservation and Land). See also Marcia Neave, ‘Australia: Recent Developments in Australian Residential Tenancies Laws’ in Susan Bright (ed), Landlord and Tenant Law: Past Present and Future (Hart Publishing, 2006) 233, 234–236.

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5. Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 203.

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6. Residential Tenancy Amendment Act 2013 (Tas) s 26 inserting s 55A into the Residential Tenancy Act 1997 (Tas). Unlike the Queensland legislation, the Tasmanian legislation only expressly prohibits photographs, not all images.

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7. Victorian Law Reform Commission Act 2000 (Vic) s 5(1)(b).

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8. Preliminary consultations with the Tenants Union of Victoria (30 August 2013 and 29 January 2014).

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9. Tenants Union of Victoria, Key Housing and Tenancy Statistics (February 2014), 1 <http://www.tuv.org.au/wp-content/uploads/2014/04/Housing-and-tenancy-stats.pdf>.

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10. Preliminary consultation with the Tenants Union of Victoria (30 August 2013).

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11. Preliminary consultation with real estate agent (3 February 2014).

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12. Ibid.

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13. Ibid.

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14. Michelle Marven, Social Change Agenda (February 2002) Tenants Union of Victoria, 4 <http://www.tuv.org.au/articles/files/future/02_Social_Change_Agenda.pdf>.

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15. Ibid.

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16. Ibid.

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17. Information provided to the Commission by Consumer Affairs Victoria (26 February 2014).

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18. Ibid.

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19. Information provided to the Commission by the Victorian Civil and Administrative Tribunal (4 March 2014).

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20. Information provided to the Commission by Consumer Affairs Victoria (26 February 2014).

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21. Preliminary consultation with the Tenants Union of Victoria (30 August 2013).

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22. Ibid.

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23. Privacy Victoria, Annual Report 2012–2013 (2013) 16.

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24. Preliminary consultation with the Real Estate Institute of Victoria (7 March 2014).

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