Photographing and Filming Tenants’ Possessions for Advertising Purposes: Consultation Paper
2. Current practice
2.1 To find out about current practice relating to photographing and filming tenants’ possessions, the Commission held informal consultations with the Tenants Union of Victoria (TUV) and several real estate agents, including representatives of the Real Estate Institute of Victoria (REIV). The Commission asked a number of advice and complaint-handling bodies for anecdotal and statistical evidence on complaints received about this issue. Consumer Affairs Victoria (CAV), the Victorian Civil and Administrative Tribunal (VCAT) and Privacy Victoria responded. Along with a review of online literature, the information received from these individuals and organisations forms the basis of this chapter.
Tenants’ concerns about photographs and videos
2.2 The TUV advised that tenants are concerned about the lack of prior or adequate notice that photographs will be taken and used for advertising purposes, and about the content of the photographs.
Notice
2.3 The TUV informed the Commission about a case in which a couple found photographs of their home online, including photographs that showed their furniture and valuable original artworks. In that instance, the agent through whom the tenants had rented the property had also been engaged to sell the property. The agent had earlier asked if he could photograph the couple’s furniture and paintings to advertise the property; however, the couple had said no. When the tenants asked for the photographs to be removed, the agent refused and threatened to become ‘nasty’.[1]
2.4 Data supplied by CAV includes complaints of this kind. Like the couple that contacted the TUV, the tenants who contacted CAV only became aware of the photographs when they found them online.[2]
2.5 In another incident related to notice, a tenant told CAV that she received a phone call from a photographer on a Friday saying he would be taking advertising photographs inside her home on Tuesday. According to the tenant, when she told the photographer that she would not let him in unless she was first given written notice from her landlord or agent explaining who he was, the photographer said that he already had keys and would let himself in.[3]
Content
2.6 In relation to the content of photographs, the TUV advised that tenants are primarily concerned about photographs that contain valuable items, and those that identify the people living there, particularly children. Possessions that may identify tenants include family portraits and items with the tenant’s name on them, such as a degree or trophy. In addition, many tenants feel that it is an invasion of their privacy to use photographs of the inside of their home and their belongings in advertising material, regardless of any risk of theft or whether the photographs contain personal information.[4]
Privacy
2.7 A real estate agent told the Commission that privacy concerns relating to advertising photographs often concern tenants’ children. In a situation she had recently been involved in, the tenants did not want photographs taken of anything relating to their child, including the child’s bedroom. The agent contacted CAV, who told her that she could take photographs of the child’s bedroom, but not objects containing personal information about the child, which in this instance included the child’s name in wooden letters on the bedroom door. On that occasion, the agent chose not to take photographs of the child’s bedroom at all.[5]
2.8 A tenant who contacted CAV for advice said that people attending an open house inspection for the home she was previously living in had offered to buy her furniture after seeing it in the advertising photographs online. The new home she was renting was now also for sale, and she was concerned about the impact the loss of privacy would have on her health. The tenant told CAV:
I have been [in my current home] just 5 months. This [problem] came after a very stressful event of the last house I was renting being sold. And now it’s going to happen again. I received a letter of advance notice from the owner yesterday. I value my privacy and [am] gutted this is going to happen again so soon. I have depression and the loss of privacy and the stress of moving last time almost robbed me of being able to cope.[6]
2.9 Another tenant who contacted CAV to ask if the landlord or agent was allowed to take advertising photographs with her family’s belongings in it said, ‘I am 35 weeks pregnant … and have a one and three-year-old. We obviously want some privacy for the coming months but we are not sure what we are entitled to do.’[7]
2.10 CAV also recounted an experience of a tenant who asked the landlord to remove the ‘for sale’ board in front of his home because it contained photographs of his private property. The tenant reported that the landlord refused to remove the board unless the tenant paid $300 for a new one.[8]
Theft
2.11 In addition to general privacy concerns, the abovementioned couple whose furniture and artwork were displayed in online advertising photographs were worried the photographs placed them at risk of theft.[9]
2.12 A number of tenants who contacted CAV for advice about advertising photographs appeared to be worried about their possessions being stolen. One tenant said advertising photographs had been taken and used without her permission and she was concerned as she had ‘valuable items on display.’[10] Another said, ‘I am not comfortable having my personal belongings photographed and put on a website with the property address.’[11] The tenant asked whether the landlord or agent was allowed to take photographs of personal belongings such as computers and televisions.[12]
2.13 Another tenant who contacted CAV said her home had been broken into after advertising photographs containing her possessions were displayed online. When agreeing to have the photographs taken, the tenant had assumed they would only be used on the noticeboard in front of the real estate agency.[13]
2.14 The Commission has found warnings online about thieves potentially targeting properties after seeing photographs or videos with the tenant’s valuables in them.[14] An article on the Real Estate Institute of NSW’s website says that agents should ‘consider the risk to the tenant of photographing any expensive items belonging to the tenants, since this could lead to compensation claims if the property is subsequently broken into.’[15] Victoria Police informed the Commission that it has advised people against placing virtual tours online, as doing so allows would-be-offenders to see what valuables are in the home and to familiarise themselves with entry points without even going to the property.[16]
Personal harm
2.15 In relation to concerns about personal safety, the Commission was told about a case in which a tenant and her place of work could be identified in online marketing photographs.[17]
2.16 Complaints data supplied by CAV includes a case involving a tenant who had taken out an intervention order. The tenant was concerned that the person against whom she had taken out the intervention order might recognise her possessions in photographs advertising the property in which she lived.[18]
2.17 A TUV fact sheet for tenants whose landlords are selling their properties advises tenants to apply to VCAT for a restraining order if they do not want their possessions photographed. It then states, ‘If the photographs put you at risk because you have fled domestic violence, you will have a better chance of getting the Restraining Order.’[19]
2.18 The Commission does not know of any case in which a person has been identified and threatened or physically harmed as a result of having possessions photographed for advertising purposes.
Questions
1. Are you aware of an instance in which a landlord or agent failed to adequately notify a tenant that advertising photographs or videos containing their possessions would be taken inside their home? If so, describe the incident and outcome.
2. Do you know of an instance in which a tenant was concerned that their possessions could be seen in advertising photographs or videos? If so, why was the tenant concerned?
3. Do you know of an instance in which a tenant has been robbed or physically harmed following the publication of advertising photographs or videos that contained their possessions? If so, describe the incident.
4. The Commission’s preliminary investigation revealed that tenants are concerned about privacy, risk of theft and risk of personal harm. Do you know of other concerns tenants might have in relation to advertising photographs or videos that contain their possessions?
Landlords’ concerns about photographs and videos
2.19 The lack of legal certainty around what landlords and tenants can and cannot do in this situation may disadvantage landlords. When tenants refuse to have photographs or videos taken of their possessions, landlords who do not know what they are legally entitled to do, or are reluctant to press their case, may suffer financial loss.
2.20 The Commission has been informed of a case in which a tenant placed sheets over all of his furniture when photographers arrived to take photographs of the property, which was for sale. The agent who told the Commission about this case was of the opinion that the tenant covered the furniture because he was upset that his home was being sold, not because the furniture was valuable or because he held any particular concerns about his privacy. The agent noted that the owner paid a considerable amount of money to have the photographs taken, the photographs were unattractive, and the property may not have attracted the buyers or bids it would have attracted if the owner had been able to showcase the property properly.[20]
Question
5. Do you know of an instance in which a tenant has refused to have photographs or videos of their possessions used in an advertising campaign? If so, what was the outcome of the dispute, and did it impact negatively on the landlord?
Advising tenants about photographs and videos
2.21 Real estate agents have different procedures for informing tenants that advertising photographs and videos will be taken when a property is for sale or lease.
2.22 One agent informed the Commission that their practice was to advise tenants in the vacating letter and the notice of entry when photographs will be taken for advertising purposes.[21]
2.23 Another agent said he knew of an agency that gave tenants a standard one-page form about advertising photographs at the end of a lease.[22]
2.24 Another real estate agent described a more informal and incremental process whereby a number of telephone and email conversations take place at the end of a tenancy about the range of marketing activities that will occur. According to that agent, it is not uncommon for landlords to offer a rent reduction in recognition of the inconvenience tenants experience when a property is being advertised for sale. The agent pointed out that it is in everyone’s interests to keep tenants happy throughout marketing campaigns, and to work with tenants to develop a plan for photographs and inspections.[23]
2.25 All the real estate agents the Commission spoke to said they gave tenants between one and seven days notice of the visit at which photographs and videos will be taken.[24]
Question
6. Can you suggest a workable, standard practice that could be adopted by landlords and agents advising tenants that advertising photographs and videos will be taken inside their homes?
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Information provided to the Commission by the Tenants Union of Victoria (7 October 2013).
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Information provided to the Commission by Consumer Affairs Victoria (26 February 2014).
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Ibid.
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Preliminary consultation with the Tenants Union of Victoria (3 February 2014).
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Preliminary consultation with real estate agent (3 February 2014).
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Information provided to the Commission by Consumer Affairs Victoria (26 February 2014).
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Ibid.
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Ibid.
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Information provided to the Commission by the Tenants Union of Victoria (7 October 2013).
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Information provided to the Commission by Consumer Affairs Victoria (26 February 2014).
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Ibid.
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Ibid.
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Ibid.
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Jo-Anne Hamilton, Residential tenancy laws: a practical guide for sales agents, REINSW <https://www.reinsw.com.au/Residential-tenancy-laws-a-practical-guide-for-sales-agents-Journal-December-2011-/default.aspx>; Sonja Koremans, ‘Open homes can attract thieves’, News.com.au (online), 25 July 2013 <http://www.news.com.au/finance/real-estate/open-homes-can-attract-thieves/story-fncq3era-1226684947232>; My Property Guide, Using Property Websites to Plan the Perfect Burglary <http://www.mypropertyguide.co.uk/articles/display/10098/using-property-websites-to-plan-the-perfect-burglary.htm>; Juliet Robinson, Privacy around inspection photos (17 May 2013) Landlords <http://www.landlords.co.nz/ask-an-expert/privacy-around-inspection-photos-2044>.
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Hamilton, above n 14.
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Information provided to the Commission by Victoria Police (12 March 2014).
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Preliminary consultation with tenants’ advocate (28 January 2014).
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Information provided to the Commission by Consumer Affairs Victoria (26 February 2014).
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Tenants Union of Victoria, The landlord is selling (July 2013) <http://www.tuv.org.au/publications/fact+sheets>.
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Preliminary consultation with real estate agent (3 February 2014).
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Ibid.
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Preliminary consultation with members of the Real Estate Institute of Victoria (6 March 2014).
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Ibid.
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Ibid and preliminary consultation with real estate agent (3 February 2014). If they are relying upon the tenant’s consent for entry, landlords and agents must enter the property within seven days of obtaining consent. If they are relying on the right of entry provisions that require written notice (without consent), landlords and agents must give at least one day’s notice: Residential Tenancies Act 1997 (Vic) ss 85(a)–(b), 88.
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