Photographing and Filming Tenants’ Possessions for Advertising Purposes: Consultation Paper
6. Consent and notification requirements
Consent
6.1 Queensland recently enacted legislation prohibiting the use of advertising images containing tenants’ belongings without the consent of the tenant.[1] Tasmania has also enacted legislation prohibiting the use of photographs containing tenants’ possessions without the tenants’ consent.[2] However, the Tasmanian legislation is not yet in force (at May 2014) as the amending legislation has not yet been proclaimed by the relevant minister.[3]
6.2 Both acts require written consent. One of the problems with disputes between landlords and tenants is that negotiations often take place in person or over the phone, in which case there is no written record of whether consent was given and, if consent was given, what it was given to.[4] Requiring written consent addresses this issue.
Queensland
6.3 Section 203 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) states that unless the landlord or agent:
has the tenant’s written consent, the [landlord] or agent must not use a photo or other image of the premises in an advertisement if the photo or image shows something belonging to the tenant.
6.4 Using images of tenants’ belongings without first obtaining the tenant’s consent is an offence that could result in a fine of up to $2,200.[5]
6.5 The Queensland Residential Tenancies Authority informed the Commission that the Queensland Minister for Housing received complaints about advertising photographs that contained tenants’ possessions during a review of Queensland’s residential tenancy legislation in 2007. The consent requirement for images of tenants’ possessions formed part of a broader conversation about tenants’ rights in relation to sales campaigns.[6]
6.6 The Tenants’ Union of Queensland told the Commission that although the conversation about the impact of marketing campaigns on tenants centred around open house inspections, a number of tenants contacted the Tenants’ Union about advertising photographs. The tenants were concerned that their valuables could be seen online by thieves, and that their possessions were being used to showcase landlords’ properties at the expense of their privacy.[7]
6.7 The Tenants’ Union noted that although the prohibition on the use of photographs that contain tenants’ possessions means landlords and agents can use photographs that do not contain tenants’ possessions in advertisements, it does not mean that landlords or agents have a right to enter to take those photographs. Like the Tenants’ Union of NSW, the Tenants’ Union of Queensland does not believe a right to enter to take advertising photographs can be implied under its residential tenancy legislation.[8]
6.8 Although the Queensland Residential Tenancies Authority has received a number of complaints since the prohibition was introduced, it is of the opinion that none of the allegations has been serious enough to warrant prosecution. Instead, they have been dealt with through education. In most instances, the photographs complained of were not regarded as infringing on the tenants’ privacy as they related to innocuous items, such as furniture or outside ornaments. However, some complaints have related to detailed internal photographs, including tenants’ electronic items such as flat screen televisions and stereos. Even fewer instances have involved family photographs displayed in the background.[9]
6.9 It is the Authority’s experience that the offence is usually committed because real estate agency sales staff access photographs from the agency’s property management records, which contain photographs that were taken for routine rental property inspections.[10]
Tasmania
6.10 The Residential Tenancy Amendment Act 2013 (Tas) (not yet proclaimed)[11] will insert the following section into the Residential Tenancy Act 1997 (Tas):
An owner of residential premises must not, without the written consent of a tenant, display to the public a photograph of the premises that displays any object in the premises that may identify the tenant or another person or that belongs to the tenant.[12]
6.11 The clause notes for the amending legislation explain that this provision was included because ‘Photos of personal possessions have the potential to create a security risk by identifying goods or the identity of the tenant.’[13] Landlords or agents who fail to comply with the new section may receive a fine of up to $6,500.[14]
6.12 The Tenants’ Union of Tasmania informed the Commission that this change came about following several years of community consultation by the Tasmanian Government. The Government’s initial consultation paper focused on clarifying the relationship between tenants and landlords and on minimum standards for rental accommodation. During the course of the Government’s negotiations with stakeholders, the Tenants’ Union raised the issue of photographs of tenants’ possessions being used in advertising and the consent provision was then included.[15]
6.13 Real Estate Institute of Victoria representatives expressed an initial view that enshrining a tenant consent requirement in Victoria’s residential tenancy legislation could harm prospective tenants and buyers, as well as landlords and agents. One agent noted that prospective buyers and tenants who look online expect to be able to obtain an accurate and detailed understanding of the current condition and amenity of the properties advertised. If landlords were not able to use photographs to provide this information because tenants objected to their belongings being photographed, this would be disadvantageous to both landlords and prospective buyers and tenants.[16]
Notification
6.14 An alternative to a consent requirement could be requiring landlords to notify tenants in writing that advertising photographs will be taken and give tenants the opportunity to remove any possessions from view.
Questions
10. Should Victorian law require tenant consent before photographs or videos of tenants’ possessions are used for advertising purposes?
11. Should Victorian law allow landlords and agents to take photographs and videos containing tenants’ possessions for advertising purposes provided that they first inform the tenant in writing that they will be taking the images and give tenants the opportunity to remove any items from view?
12. Can you suggest any other reforms that might strike the right balance between the desire of landlords to advertise their properties and the concerns of tenants in relation to photographs and videos that contain their possessions?
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Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 203. See Appendix C: Use of photographs and videos for advertising purposes.
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Residential Tenancy Amendment Act 2013 (Tas) s 26. See Appendix C: Use of photographs and videos for advertising purposes.
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Residential Tenancy Amendment Act 2013 (Tas) s 2.
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Information provided to the Commission by the Victorian Civil and Administrative Tribunal (20 March 2014).
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Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 203 states that the maximum penalty is 20 penalty units. One penalty unit is currently $110: Queensland Government, Sentencing fines and penalties for offences (2 December 2013) <https://www.qld.gov.au/law/crime-and-police/types-of-crime/sentencing-fines-and-penalties-for-offences/>.
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Preliminary consultation with David Breen, Executive Manager, Policy and Education Services, Residential Tenancies Authority (2 October 2013 and 9 May 2014).
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Preliminary consultation with the Tenants’ Union of Queensland (12 May 2014).
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Ibid.
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Preliminary consultation with David Breen, Executive Manager, Policy and Education Services, Residential Tenancies Authority (2 October 2013 and 9 May 2014).
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Ibid.
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Tasmania, Tasmanian Government Gazette, No 21 378, 30 October 2013, 1737.
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Residential Tenancy Amendment Act 2013 (Tas) s 26 inserting s 55A into the Residential Tenancy Amendment Act 2013 (Tas).
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Clause Notes, Residential Tenancy Amendment Bill 2013 (Tas) cl 24.
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Section 26 of the Residential Tenancy Amendment Act 2013 (Tas) states that the penalty for contravention is a fine not exceeding 50 penalty units. A penalty unit in Tasmania is currently $130: Tasmanian Department of Justice, Value of Indexed Amounts in Legislation (23 April 2014) <http://www.justice.tas.gov.au/legislationreview/value_of_indexed_units_in_legislation>.
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Preliminary consultation with Tenants’ Union of Tasmania (20 March 2014).
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Preliminary consultation with the Real Estate Institute of Victoria (7 March 2014).
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Victorian Civil and Administrative Tribunal, Annual Report 2011/2012 (2012) 2.
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Victorian Civil and Administrative Tribunal, VCAT fees effective from 1 July 2013 (24 May 2013) <https://www.vcat.vic.gov.au/news/vcat-fees-effective-1-june-2013>.
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Tenants Union of Victoria, Going to the Tribunal (May 2010) <https://www.tuv.org.au/articles/files/resources/Step-by-step_guide_to_going_to_Tribunal_AG_RT_052010.pdf>.
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Ibid.
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Victorian Civil and Administrative Tribunal Amendment Act 2014 (Vic) s 14 inserting div 8A in pt 4 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
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Victorian Civil and Administrative Tribunal Amendment Act 2014 (Vic) s 2.
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See [3.4]–[3.8] for an overview of the rights of landlords and agents to enter their property in Victoria.
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Residential Tenancies Act 1997 (Vic) s 91(1).
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Ibid s 91.
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Ibid s 91(2)(a).
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Residential Tenancies Act 1997 (Vic) s 208.
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Ibid s 207 defines ‘required time’. Pursuant to section 207, 14 days applies to the circumstances under consideration. In other circumstances, it may be three days.
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Ibid ss 208(2)(c)(ii)–(d).
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Ibid s 208(2)(e)(i).
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Ibid s 212(1).
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Office of the Australian Information Commissioner, Making a privacy complaint <http://www.oaic.gov.au/privacy/making-a-privacy-complaint>.
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Office of the Australian Information Commissioner, What happens to your privacy complaint <http://www.oaic.gov.au/privacy/what-happens-to-your-privacy-complaint>.
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Ibid.
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Ibid.
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Office of the Australian Information Commissioner, Australian Government’s Budget decision to disband the OAIC <http://www.oaic.gov.au/news-and-events/statements/>.
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