Photographing and Filming Tenants’ Possessions for Advertising Purposes: Consultation Paper
5. Right to privacy
5.1 Privacy means different things to different people. According to Privacy Victoria:
[Privacy] can mean protecting your personal space by not having others observe you when you are at home or in your backyard. It may be expecting not to be subject to video surveillance when you are at work … Any number of activities in a range of circumstances can be seen as ‘private’.[1]
5.2 Conceptually, privacy can be divided into three categories—physical privacy, freedom from excessive surveillance and information privacy.[2] When a landlord enters a tenant’s home to take advertising photographs or videos without their consent, the tenant may feel this constitutes a breach of their physical privacy and that they have been subjected to excessive surveillance. If the advertising photographs or videos contain personal information, such as a photograph of the tenant’s children, the tenant may feel their information privacy has also been breached. However, the fact that a tenant feels that their privacy has been violated does not necessarily mean that the conduct complained of is prohibited by law.[3]
5.3 Victorians enjoy a right to information privacy under the Information Privacy Act 2000 (Vic) (‘Privacy Act’) and a right to privacy and reputation under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’).[4] However, as this legislation only applies to government agencies, local councils and people delivering services on behalf of the government,[5] and as the Office of Housing only advertises vacant properties for sale,[6] there do not appear to be any circumstances in which the Privacy Act or the Charter would be applicable to tenants who are concerned about advertising photographs or videos.
5.4 The Australian Privacy Principles (‘the Principles’) are applicable to photographs and videos of tenants’ possessions in certain circumstances.
Australian Privacy Principles
5.5 The Principles apply to government agencies, large businesses with a turnover of more than $3 million and small businesses in limited, specific circumstances.[7] The Principles are set out in the Privacy Act 1998 (Cth)[8] and concern the collection and use of personal and sensitive information.[9]
5.6 Personal information includes information about an identified individual or an individual who is reasonably identifiable.[10] The Office of the Australian Information Commissioner’s website states that a person’s name, signature, address, telephone number, date of birth, medical records and bank account details are all examples of personal information.[11] A photograph that contains a person’s image or name may constitute personal information.
5.7 Australian Privacy Principle 3 prohibits organisations from collecting personal information unless the information is reasonably necessary for carrying out their activities.[12] Australian Privacy Principle 5 states that, before or at the time of collecting personal information, an organisation must advise the individual whose information is being collected about certain matters where it is reasonable in the circumstances to do so.[13] Those matters include the fact that the information is being collected as well as the purpose for its collection.[14]
5.8 Where a landlord or real estate agency is a private business that earns more than $3 million per year, Australian Privacy Principles 3 and 5 would apply if the tenant’s personal information was shown in advertising photographs or videos. If the tenant had been notified in advance that the photographs or videos would be taken for advertising purposes, whether or not they contravened the Principles would appear to turn on whether it was reasonably necessary for the landlord or agent to collect the information in the course of selling or leasing the property.
5.9 Australian Privacy Principle 6 prohibits organisations that hold personal information for a particular purpose from using that information for another purpose, except in certain circumstances, including after obtaining the individual’s consent.[15] If images containing a tenant’s personal information were taken for a purpose other than advertising, such as to record the condition of the property during a routine inspection, Australian Privacy Principle 6 appears to prohibit landlords and agents who are subject to the Principles from using those photographs or videos for advertising purposes without obtaining the tenant’s consent.
Questions
8. Do you consider that it is an invasion of the tenant’s privacy to take or use advertising photographs or videos of tenants’ possessions without their consent?
9. How should the law protect tenants’ privacy in relation to photographs or videos that contain tenants’ possessions?
-
Privacy Victoria, Privacy Laws (16 August 2012) <http://www.privacy.vic.gov.au/domino/privacyvic/web2.nsf/pages/privacy-laws#What is>.
-
Information and Privacy Commission NSW, What is privacy? (19 July 2013) <http://www.ipc.nsw.gov.au/privacy/privacy_forgovernment/govt_privacy/privacy_faqprivacy.html>.
-
For more on the invasion of privacy experienced by tenants see [2.7]–[2.10].
-
Information Privacy Act 2000 (Vic) sch 1; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 13.
-
Information Privacy Act 2000 (Vic) ss 9(a)–(d); Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 6(2)(b)–(c).
-
Information provided to the Commission by the Department of Human Services (29 April 2014).
-
Privacy Act 1998 (Cth) ss 6C–6EA.
-
Ibid sch 1.
-
Ibid s 6 (definition of ‘personal information’).
-
Ibid.
-
Office of the Australian Information Commissioner, What is covered by privacy <http://www.oaic.gov.au/privacy/what-is-covered-by-privacy>.
-
Privacy Act 1998 (Cth) sch 1, Principle 3.2.
-
Ibid sch 1, Principle 5.1.
-
Ibid sch 1, Principles 5.2(b), (d).
-
Ibid sch 1, Principle 6. See Principles 6.2 and 6.3 for exceptions to this rule.
 |