Photographing and Filming Tenants’ Possessions for Advertising Purposes: Report

3. Right to enter

Introduction

3.1 The Residential Tenancies Act 1997 (Vic) (RTA) does not expressly refer to the practice of taking images of rental properties for advertising purposes. While some argue that the RTA establishes a right to enter for this purpose without tenant consent, others disagree.

3.2 The Commission considers this debate below, concluding that it is currently unlawful for a landlord or agent to enter to take advertising images that show tenants’ possessions without the tenant’s consent.

3.3 However, the Commission is also of the view that this prohibition unnecessarily undermines the capacity of landlords to sell and lease their properties, and that an express right to enter to take advertising images should be adopted.

3.4 As discussed in Chapter 2, some landlords and agents have unreasonably interfered with the ability of tenants to live peacefully in their homes when entering, or seeking to enter, to take advertising images. This has caused tenants varying degrees of distress and, occasionally, placed tenants at risk of harm. Accordingly, the Commission recommends limiting the scope of the express right to enter to take advertising images in line with the legitimate concerns of tenants.

Is there a right to enter to take advertising images that show tenants’ possessions?

Current law

3.5 The central question for review is whether a landlord or agent may enter to take advertising images that show tenants’ possessions without tenant consent. The Commission is not concerned with situations in which a tenant has freely consented to a landlord or agent’s request to take images to advertise a property that is for sale or lease.

Legislation

3.6 The RTA sets out the circumstances in which a landlord or agent may enter a rental property in Victoria.^[1] It is an offence to enter a property other than in accordance with the RTA, unless the landlord or agent has a reasonable excuse for doing so.^[2]

3.7 A landlord or agent may enter the property for any purpose if the tenant has consented to the landlord or agent’s request to enter for that purpose within the past seven days.^[3]

3.8 Without the tenant’s consent, the landlord or agent may only enter on certain grounds, such as showing the property to a prospective tenant.^[4] If a landlord or agent wishes to enter on one of these grounds, they must provide the tenant with at least 24 hours written notice.^[5]

Possible interpretations

3.9 One reading of the RTA is that it provides that a landlord or agent may only enter a rental property without the tenant’s consent on the grounds set out in the RTA, and taking advertising images is not one of those grounds. The seven grounds for entry listed in the RTA are:

• showing the property to a prospective tenant

• showing the property to a prospective buyer or lender

• carrying out the landlord’s legal duties

• undertaking valuation activities

• determining whether the tenant has failed to comply with their legal duties

• conducting a routine inspection

• conducting an inspection in order to terminate or amend the lease in cases of family violence.^[6]

3.10 An alternative reading of the RTA is that ‘to show the property’ should not be restricted to physically entering the property. According to this interpretation, entering to show the property to a prospective buyer or tenant includes entering in order to show the property in a billboard or online.

3.11 A third reading of the RTA is that advertising a property is sufficiently incidental to, and therefore authorised by, the right to enter to show the property. That is to say, there would be few, if any, prospective tenants or buyers to show the property to if the property was not first advertised.

Tribunal findings

3.12 The Victorian Civil and Administrative Tribunal (VCAT) has not received an application for an order restraining a landlord or agent from taking or using advertising images that show tenants’ possessions.^[7] As such, VCAT has not been asked to decide whether landlords and agents have a right to enter for that purpose.

3.13 However, VCAT has been asked to consider the scope of the right to enter to show the property to a prospective tenant or buyer.^[8] In deciding that landlords and agents do not have a right to enter to hold open house inspections, VCAT has found that the RTA only bestows on landlords and agents a right to conduct private inspections with a particular prospective tenant or a particular prospective buyer.^[9]

3.14 In Higgerson v Ricco, Member Tyler rejected the agent’s argument that collecting attendees’ names on entry would mean that the house was not ‘open to the world at large’.^[10] Member Tyler described open house inspections as ‘a ‘fishing’ exercise and an opportunity for a wide range of parties to enter the premises for a number of reasons including those unrelated to a prospective purchase’.^[11]

3.15 In Jones v Director of Housing, the tenant challenged the landlord’s right to take photographs inside the property in order to record the condition of the property on the ground that the photographs may inadvertently capture his possessions and thereby violate his right to privacy.^[12] Member Grainger found in favour of the landlord, noting that it was reasonable for the landlord to take photographs to record the condition of the unit when entering in order to carry out the duty to maintain the property in good repair.^[13]

3.16 In reaching this conclusion, Member Grainger observed that while the photographs the landlord intended to take of the bathroom and kitchen may capture the tenant’s possessions, the tenant could easily remove his possessions from view.^[14] As the landlord stated that the tenant’s possessions would not be captured in the photographs taken in the property’s other rooms, Member Grainger did not consider whether taking images of the tenant’s possessions in rooms from which they could not so easily be removed was lawful.^[15]

Community responses

Landlords have a right to enter for this purpose

3.17 Consumer Affairs Victoria (CAV) advises tenants who call for assistance that landlords and agents may enter to take advertising photographs, and that tenants may ask, but cannot insist, that those photographs not include their personal possessions.^[16] It also advises tenants that they should contact the Office of the Australian Information Commissioner (OAIC) if they feel the photographs breach their privacy by identifying the tenant or the tenant’s family members.^[17]

3.18 CAV is of the opinion that the right to enter to take advertising images is authorised by the right to show the property to a prospective tenant or buyer. CAV informed the Commission:

… section 86(1)(f) of the Residential Tenancies Act 1997 (‘the Act’) permits a landlord to exercise a right of entry if entry is required to enable inspection of the premises and entry for that purpose has not been made within the last six months. When exercising that right, a landlord is not precluded from taking photographs as part of the inspection, as photographs may provide evidence as to the condition of the premises if there is a bond dispute at the end of the tenancy. Whether or not the landlord’s conduct, in taking such photographs, would amount to a breach of the tenant’s right to quiet enjoyment will depend on the facts.

Where photographs are required for advertising purposes, sections 86(1)(a) and 86(1)(b) of the Act permit the landlord to exercise a right of entry if entry is required to show the premises to a prospective tenant, buyer or lender. These provisions encompass showing the premises by means of photographs, noting that in some instances a prospective tenant, buyer or lender may not be able to physically attend the premises and that photographs are generally considered necessary in order for a property to be marketed competitively. Safeguards as to the manner in which a right of entry is exercised are provided in section 87 of the Act.^[18]

3.19 The Real Estate Institute of Victoria (REIV) shares the view that landlords and agents have a right to enter to take advertising images showing tenants’ possessions.^[19]

3.20 Many agents and landlords also asserted that they had a right to enter for this purpose.^[20] This was most commonly based on the argument that landlords have a right to sell or lease their property, and that they need to advertise their property in order to do so.^[21] This is consistent with the third interpretation of the RTA set out above, although none of the agents or landlords who held this view referred to the legislation.

Landlords do not have a right to enter for this purpose

3.21 The Tenants Union of Victoria (TUV) is of the opinion that ‘the landlord has no right of entry for the purpose of taking photographs of the premises for advertising.’^[22] This view is supported by the tenants’ unions of the Australian Capital Territory, New South Wales, Queensland and Tasmania in relation to legislation operating in their respective jurisdictions.^[23]

3.22 The TUV set out the legal basis for its position in its submission:

The RTA creates specific conditions under which the landlord is entitled to access the rented premises by notice of entry. These conditions can, and should, be narrowly understood and interpreted to protect the tenant’s right to exclusive possession and their subsequent right to quiet enjoyment of the rented premises.^[24]

3.23 According to the TUV, a narrow interpretation is consistent with the right to privacy in the Charter of Human Rights and Responsibilities Act 2006 (Vic).^[25]

3.24 At the Commission’s roundtable, the TUV stated that this interpretation of the RTA would not prevent landlords from selling their properties, it would simply prevent landlords from using tenants’ possessions in advertising material without the tenant’s permission when selling their properties.^[26] The TUV is of the view that many tenants would freely provide consent, while others might give their consent on the condition that certain possessions not be photographed or that they receive a rent reduction for the duration of the advertising campaign.^[27] In cases where tenants withheld consent, the TUV identified alternative options, such as using old images of the property or waiting until the property was vacant before taking images.^[28]

3.25 If advertising images identify the tenant or a family member, the TUV, like CAV, advises tenants to contact the OAIC.

Australian Privacy Principles

3.26 The OAIC’s website asserts that state-based tenancy laws determine when a real estate agent can take photographs in a tenant’s home.^[29] However, if the photograph captures personal information, such as the tenant’s name or image, it states that the agent must handle it in accordance with the Privacy Act 1998 (Cth) (Commonwealth Privacy Act).^[30]

3.27 The Commonwealth Privacy Act applies to a limited range of agencies. This includes large real estate agencies, but not small or medium-sized agencies unless they are carrying out specific functions, such as operating a residential tenancy database.^[31] The Commonwealth Privacy Act does not apply to individual landlords.

3.28 If the tenant has been told in advance that images of their possessions will be taken,^[32] whether the Commonwealth Privacy Act prevents the collection of personal information by those to whom it applies depends on whether it is reasonably necessary for the landlord or agent to collect the information in order to sell or lease the property.^[33]

Commission’s conclusions

3.29 The conclusions expressed by CAV and cited at [3.18] certainly are arguable. However, the Commission considers that primacy should be given to the terms of the RTA. The RTA sets out with specificity the rights of entry of landlords. Entry for the contended purpose (to take images for advertising purposes) is not one of the specified rights. The Commission concludes that, as the RTA clearly sets out the grounds on which landlords and agents can enter the property without first obtaining tenant consent and as taking advertising images is not listed as a ground for entry, landlords and agents have no right to enter for that purpose. It follows that landlords and agents may only enter a property to take advertising images that show the tenant’s possessions after obtaining the tenant’s consent.

3.30 The Commission does not agree that the meaning of ‘to show’ extends to showing a property to the world at large in advertising material. The Commission’s view is consistent with previous VCAT decisions in which the right to enter to show a property has been interpreted to establish a right to enter only in relation to a particular prospective tenant or a particular prospective buyer.^[34]

3.31 Further, the Commission does not agree that there is an implied right to enter to take advertising images of tenants’ possessions because advertising is sufficiently incidental to the act of entering to show the property in person. Even if one accepted the proposition that there was an implied right to enter to take advertising images of the property, this proposition does not authorise the taking of advertising images showing tenants’ possessions.

3.32 Although stakeholders disagreed about the level of privacy that ought to be afforded to different areas of the property, most appreciated the varying degree of intrusion associated with those areas.^[35] Images taken of the outside of the property are less intrusive than images taken of rooms that do not show tenants’ possessions (or rooms from which tenants’ possessions can easily be removed), which are, in turn, less intrusive than images that do show tenants’ possessions.^[36]

3.33 In the Commission’s view, the level of intrusiveness associated with advertising images that show tenants’ possessions is such that the authority to take such images without tenant consent requires clear legislative intent and proper regard for the consequences for tenants.

3.34 In view of the differing conclusions, expressed above, on the pivotal matter of the right to enter to take advertising images, the Commission concludes that it is desirable that legislation be amended to remove the uncertainty surrounding this matter. This course is preferable to leaving the situation as one involving disputed statutory interpretation.

Should there be a right to enter to take advertising images that show tenants’ possessions?

3.35 While all stakeholders agreed that landlords have a right to sell or lease their properties, and that tenants have a right to exclusive possession and quiet enjoyment of their properties, there is disagreement on where the balance should lie between these competing interests when it comes to taking advertising images that show tenants’ possessions.^[37]

3.36 Underlying many of the following comments is an assumption that landlords and agents currently have a right to enter to take advertising images without tenant permission. As already noted, the Commission is of the opinion that those who hold this view are mistaken.

Community responses

3.37 Most agents and landlords were in favour of a right to enter to take advertising images without tenant consent, and most tenants were not. These arguments are set out in more detail below.

3.38 However, more than one agent said they would never take advertising images of a tenant’s possessions without first obtaining the tenant’s permission.^[38] Similarly, a landlord stated that after carefully considering whether ‘[I would] like my possessions used by others for their own purposes and possibly exposing me to damage as a result’, her answer was ‘[a] resounding no’.^[39]

3.39 On the other hand, a tenant said she thought that prohibiting landlords from taking advertising images without first obtaining the tenant’s written consent might ‘create more problems than it solves’.^[40] The landlord might, for example, evict the tenant and show the property empty rather than negotiate with the tenant to obtain consent.^[41]

Agents and landlords

3.40 The REIV and its members are in favour of a right to enter to take advertising images that show tenants’ possessions.^[42] The REIV’s submission stated:

100% of members surveyed supported the right of landlords and agents to take photographs and videos containing tenants’ possessions where tenants were informed in writing and given the opportunity to remove their possessions from view.^[43]

Importance of advertising

3.41 A number of agents pointed out that, in this day and age, advertising is a crucial component of selling or leasing a property.^[44] The Real Estate Institute of Queensland told the Commission that ‘the majority of buyers start their search on the internet and this applies equally for renters.’^[45]

3.42 According to one agent, not having photographs of the property would ‘severely compromise the agent’s ability to sell the property’.^[46] Another agent informed the Commission that having ‘no photos of the main rooms in a dwelling gives buyers the impression that there is something that the buyer should not see’.^[47]

3.43 One agent knew of a situation in which the tenants refused entry for both the taking of advertising images and open house inspections. At the auction, the tenants were the only bidders and, according to the agent, they bought the property for a very low price.^[48]

3.44 A landlord told the Commission that prospective tenants often have a check list of requirements relating to features such as bedroom size or storage capacity.^[49] She expressed concern that if those tenants were not able to determine whether a property met their requirements by looking at the images in an advertisement, they would simply skip to the next advertisement which contained the information they needed.^[50]

Disgruntled tenants

3.45 Many agents were worried that if tenant consent were required before advertising images of tenants’ possessions could be taken or used, disgruntled tenants could withhold consent and hamper the sale.^[51]

3.46 As a Real Estate Institute of Tasmania representative explained:

If [the tenants] are leaving the property and moving to another but there is a breakdown of communication between tenant and landlord for whatever reason … they might not give their consent. When people enter into these agreements, the relationship is good, but when the agreement comes to an end, the relationship may not be so good.^[52]

3.47 According to the representative, this would create problems for agents: ‘You can’t market a property to the best of your ability in the shortest time possible if you can’t take photos.’^[53]

Financial implications

3.48 A number of agents pointed out that landlords sometimes have to sell their properties unexpectedly because of financial hardship, and it would be unfair if the landlord could not sell the property quickly and/or at market value because they were denied the opportunity to showcase the property in advertising material.^[54]

3.49 A landlord informed the Commission that it was a misconception that landlords could afford to absorb the costs associated with not being able to showcase the property in advertising material in a timely manner. In her case, she and her husband have lived frugally in order to buy four investment properties, which they hope will bring them long-term financial security. The landlord, who works three jobs, noted that ‘The bank owns all these houses.’^[55]

Tenants

3.50 The TUV is not in favour of vesting landlords and agents with a right to enter to take advertising images, arguing that ‘as far as possible a tenant should have the same control over their home environment as an owner occupier’.^[56] According to the TUV:

Renting should be a legitimate, appropriate and long term housing option for those who choose it. The notion that somebody’s personal space can be photographed against their will … is unacceptable … ^[57]

3.51 A number of tenants echoed these sentiments. As one tenant put it:

Using someone else’s belongings in advertising material for a property is tremendously rude. Many people rent a home, not just a property and images of their home are a gross invasion of privacy.^[58]

3.52 Similarly, Assistant Professor Bruce Arnold stated:

Public policy should not enshrine the convenience of real-estate agents ahead of the right of tenants to enjoy ‘quiet possession’ and enjoy a private sphere, a quiet that involves a freedom from unwanted physical visitation and virtual visitation (ie the image-making and the publication).^[59]

3.53 As noted above, the TUV expressed the view that denying landlords the opportunity to take advertising images of tenants’ possessions without tenant consent does not deny landlords the opportunity to sell their properties. It means that they have to obtain tenant consent or, where consent is not given, adopt an alternative strategy for advertising the property. That might involve using old images or waiting until the property is vacant.

Other states and territories

3.54 With the exception of South Australia, Queensland and Tasmania, the debate about the right to enter to take advertising images is similar in Australia’s other jurisdictions to the one in Victoria.

3.55 In South Australia, landlords have a right to enter for a genuine purpose, which may include taking advertising images of the property.^[60]

3.56 In Queensland and Tasmania, residential tenancy law regulates the use, as opposed to the taking, of advertising images that show tenants’ possessions.^[61] This has implications for the debate about the implied right to enter to take advertising images, as conduct prohibited when using advertising images is likely to be prohibited when taking advertising images.

South Australia

3.57 The Residential Tenancies Act 1995 (SA) stipulates that landlords or agents may enter for a genuine purpose without obtaining the tenant’s consent. If they wish to enter on that ground, they must provide written notice to the tenant between seven and 14 days before entering the property.^[62]

3.58 The South Australian Government website says landlords may enter to take advertising images of their property, but not of tenants’ possessions.^[63] According to the website,

‘A photograph of an area not identifying the tenant’s possessions is acceptable

e.g. [the] bathroom.’^[64]

3.59 The legal basis for this advice is not clear. It may be that the genuine purpose provision establishes a right to enter to take advertising images of the property.^[65] It may also be that, when exercising that right, South Australia’s expansive right to quiet enjoyment prevents landlords from taking advertising images of tenants’ possessions without tenant consent.^[66]

Queensland

3.60 Section 203 of the Residential Tenancies and Rooming Accommodation Act 2013 (Qld) prohibits the use of advertising images that show tenants’ possessions without the written consent of the tenant.^[67] Violating this provision is an offence that may attract a fine of up to $2,277.^[68]

3.61 The prohibition on using advertising images of tenants’ possessions without their consent suggests that landlords cannot take advertising images of tenants’ possessions without their consent. If it were otherwise, that is, if landlords had an implied right to enter to take advertising images of tenants’ possessions but needed tenant consent to use those images, this would create a situation in which landlords were entitled to enter to take images of tenants’ possessions that they may then not be allowed to use.

3.62 It could be argued that the prohibition implies a right to enter to take advertising images that do not show tenants’ possessions. Tenants Queensland is of the opinion that it does not.^[69]

3.63 The Queensland Residential Tenancies Authority has received a number of complaints since the prohibition was introduced. However, it has not deemed any of them serious enough to warrant prosecution.^[70] In part, this is because the offence is often committed by agency sales staff who use photographs already stored in the agency’s property management records without realising they need to obtain tenant consent before publishing them.^[71]

3.64 The Authority advised that it has received complaints about advertising images that showed family photographs and electronic items, as well as complaints from tenants at risk of family violence.^[72] In addition, it has received complaints that appear to be of a trivial nature, including a complaint about an image of the backyard that showed a soccer ball and about an image that showed a pot plant.^[73]

Tasmania

3.65 On proclamation, section 26 of the Residential Tenancy Amendment Act 2013 (Tas) would have required landlords and agents to obtain the written consent of the tenant before showing advertising images that display ‘any object in the premises that may identify the tenant or another person or that belongs to the tenant’.^[74] While most of that Act commenced on 1 October 2014, a number of sections did not, including section 26.^[75] The Tasmanian Consumer Affairs and Fair Trading website says that amendments to the uncommenced sections are currently being considered.^[76]

3.66 The Real Estate Institute of Tasmania was of the opinion that agents in Tasmania have a right to enter to take advertising images and that it was only fair that they did so. Its CEO said that while he was not in favour of the broad consent requirement that had been enacted, agents neither needed nor wanted to use images of possessions that would identify the tenant.^[77]

Commission’s conclusions

3.67 In seeking to clarify and update the law relating to the taking of advertising images when a property is for sale or lease, the Commission is mindful of the need to uphold the right of landlords to sell and lease their properties, while at the same time protecting the legitimate concerns of tenants.

3.68 Although it is clear that some landlords and agents have treated tenants poorly when taking advertising images, it is equally clear that landlords, agents and tenants successfully negotiate their way through this process all the time. In reaching its conclusions, the Commission has been guided by examples of industry best practices, as espoused by landlords, agents and tenants.

3.69 The Commission has not considered the operation of South Australia’s genuine purpose provision in the Victorian context, as its application is so broad as to place it beyond the scope of the Commission’s terms of reference.

Right of landlords to sell and lease their properties at market value

3.70 Prohibiting landlords and agents from showcasing their properties in advertising by granting tenants an unfettered right to withhold their permission for the taking or use of advertising images would likely have a significant negative impact on rental and sales activities. Modern advertising practices are such that any landlord who was restricted to showing only the outside of the house, and perhaps rooms from which possessions could easily be removed, would be at a disadvantage compared with other property owners and may suffer a significant financial loss.

3.71 The Commission understands that the primary purpose of the consent requirement in Queensland is not to prevent advertising images from being taken but rather to enhance the bargaining power of tenants when landlords wish to advertise their properties. That is to say, the consent provision is designed to encourage landlords and agents to address the concerns of tenants with respect to advertising images as they will not be able to obtain the tenants’ consent unless they do so.

3.72 However, the provision also allows disgruntled tenants to prevent landlords from showcasing the inside of their properties in advertising material for the duration of the tenancy.^[78] While there may be adequate alternatives available to landlords in some situations, this will not always be the case.

3.73 It may be, for example, that the images last used to sell or lease the property are of insufficient quality or are too old to accurately reflect the current condition of the property. Or it may be that the landlord cannot afford to wait until the property is vacant before advertising it. Several stakeholders told the Commission that one way of addressing this problem would be for landlords to ask tenants to vacate earlier than they otherwise would have which, as they pointed out, is not particularly desirable for anyone.^[79]

Recommendation

1 The landlord and landlord’s agent should have an express right to enter to take advertising images.

3.74 The Commission is of the opinion that, subject to the legitimate concerns of tenants, landlords in Victoria should have a right to enter to take advertising images, which includes images that show tenants’ possessions.

Legitimate concerns of tenants

3.75 Having regard to the experiences of tenants discussed throughout this paper, the Commission is of the view that tenants’ general privacy concerns about their homes and possessions should not restrict the right of landlords to take advertising images.

3.76 However, the distress and harm associated with the display of certain possessions is such that tenants should have the capacity to prevent advertising images of those possessions being taken where it would be unreasonable to expect the tenant to remove or conceal them. These possessions are possessions that directly identify the tenant, reveal sensitive information about the tenant, or place the tenant at a heightened risk of theft.

3.77 Similarly, the distress and harm associated with possibly revealing the identity and location of tenants at risk of family or personal violence by displaying their possessions in advertising images is such that they should have the capacity to prevent advertising images of their possessions being taken.

Possessions that directly identify the tenant

3.78 Possessions may identify tenants directly or indirectly. Possessions that directly identify the tenant are possessions that allow the viewer to distinguish that person from all others without recourse to other information. Examples include possessions that display a person’s name or image.^[80]

3.79 Possessions that indirectly identify the tenant are possessions that would enable someone with prior knowledge of the tenant, or with access to other material, to work out the identity of the person on viewing the possessions. Examples include distinctive furniture or a particular combination of belongings that would enable anyone who had previously visited the tenant in any other home to identify the tenant through advertising images.

3.80 The reason for excluding possessions that indirectly identify the tenant from this category of protected information is clear. It would be hard to find a tenant whose possessions, when viewed together, did not reveal their identity to a single person, and preventing landlords from showcasing their properties in advertising material on this basis cannot be justified.

Possessions that reveal sensitive information

3.81 Sensitive information is information the disclosure of which would cause offence to a reasonable person of ordinary sensibilities.^[81] Obvious examples include medical or financial information.

3.82 The categories of sensitive information in the Australian Privacy Principles (APP) provide useful guidance on the kinds of information a tenant may object to. These include information about an individual’s:

• racial or ethnic origin

• political opinions

• religious beliefs or affiliations

• sexual orientation

• criminal record.^[82]

3.83 In an important departure from the Australian Privacy Principles, however, it should not be necessary that the images also reveal the tenant’s identity for it to fall within this category of protected information. Tenants told the Commission that family members, friends and colleagues often look up online property advertisements in order to see images of the tenants’ homes and were sometimes stumbling across sensitive information.^[83]

3.84 For example, a tenant expressed concern that advertising images displayed a poster on her wall that revealed her sexuality.^[84] If someone she knew looked up the advertising images online, her sexuality would be revealed to that person even if the images themselves did not inform the viewer of her identity.

Valuable possessions at a heightened risk of theft

3.85 Stakeholders most often identified televisions, computers and other electronic goods as being at a heightened risk of theft when displayed in advertising images.^[85] Other items included original artworks, antique furniture and jewellery.^[86]

3.86 The NSW Bureau of Crime Statistics and Research reports that the 10 most commonly stolen items from households are money, laptops, jewellery, cameras, mobile phones, wallets, identification documents, televisions, video game equipment and watches.^[87]

3.87 The Commission is satisfied that these possessions can properly be described as valuable and that their display could place the tenant at a heightened risk of theft.

Unreasonable to remove or conceal

3.88 In many instances, possessions that would fall within the categories of protected information set out above could easily be removed or concealed by the tenant. Examples include a degree with the tenant’s name on it, family photos, medication or an expensive painting.

3.89 For this reason, landlords and agents should only be prohibited from taking images where it would be unreasonable to expect the tenant to remove or conceal the possession concerned.

3.90 In addition to the ease with which a possession can be removed or concealed, any sensitivities associated with the possession’s removal or concealment may go to determining whether it would be ‘unreasonable’ to expect the tenant to remove or conceal it. It may be unreasonable, for example, to expect a tenant to remove or conceal a shrine to a person who had recently died.

Family or personal violence

3.91 As stated above, the Commission is of the view that tenants who have experienced family or personal violence should not be placed at risk of harm by having their home address revealed to the perpetrator through advertising images. The fear of being found may itself cause great distress to the tenant and, if the tenant were found, the consequences may be extreme.

3.92 In situations of family or personal violence, the Commission is satisfied that all possessions that could identify the tenant, whether directly or indirectly, should be protected at the tenant’s request because of the level of harm associated with revealing the tenant’s identity to the person posing the risk.

3.93 For example, an agent told the Commission that a tenant had expressed concern about her ex-partner finding her through advertising photographs that displayed a unique bed setting. The agent suspected the woman was at risk of family violence, and chose not to take photographs of the bedroom or of other distinctive possessions throughout the house.^[88]

3.94 As this example demonstrates, the very nature of family violence means that it is likely that a perpetrator could identify their victim through the possessions they have in their home. This is less likely in situations of personal violence, where the perpetrator and victim are unrelated. However, where a tenant at risk of personal violence could be identified directly or indirectly by a perpetrator, their possessions should also be protected from publication at the tenant’s request.

3.95 Although there are provisions in the RTA dealing with situations in which tenants are escaping family violence, the RTA does not define family violence.^[89] Family violence is defined in the Family Violence Protection Act 2008 (Vic) as behaviour towards a family member that:

• is physically or sexually abusive

• is emotionally or psychologically abusive

• is economically abusive

• is threatening

• is coercive

• in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person.^[90]

3.96 The Personal Safety Intervention Orders Act 2010 (Vic) provides useful guidance on the behaviours that constitute personal violence. These are assault, sexual assault, harassment, property damage, making a serious threat and stalking, when the victim and perpetrator are not family members.^[91]

Recommendation

2 When exercising the express right to enter to take advertising images:

(g) The landlord or landlord’s agent must not take, or permit to be taken, an advertising image where the tenant has objected in writing to the image being taken because it would show:

(i) a possession that directly identifies the tenant or another occupant,

(ii) a possession that reveals sensitive information about the tenant or another occupant, regardless of whether that occupant’s identity is also revealed, or

(iii) a valuable possession which places the tenant at a heightened risk of theft

and it would be unreasonable to expect the tenant to remove or conceal the possession.

(h) The landlord or landlord’s agent must not take, or permit to be taken, an advertising image showing a tenant’s possessions where the tenant has objected in writing to the image being taken because:

(i) the tenant or other occupant is at risk of family or personal violence, and

(ii) the image would show possessions that may reveal the identity of that occupant to the person posing the risk.

Other occupants

3.97 A tenant is defined in the RTA as a person to whom premises are leased, or to whom premises are to be leased, under a tenancy agreement.^[92]

3.98 However, other people often live in a rental property in addition to the person or people who signed the tenancy agreement.

3.99 As discussed in Chapter 2, many tenants were concerned about photographs of their children being displayed in advertising images. One can also imagine a situation in which a person escaping family violence moves into a home rented by a family member or friend. Although not the tenant, these other occupants should be afforded protection under the law.

Right to use

3.100 The focus of this chapter is the practice of entering a property to take advertising images that show tenants’ possessions. Tenants also raised concerns about the right of landlords and agents to use images that have already been taken.

Time limit

3.101 Stakeholders informed the Commission that it is not uncommon for agents and landlords to re-use advertising images showing former tenants’ possessions a number of years after they have been taken.

3.102 A real estate photographer told the Commission that he receives two to three requests from agents each month asking to re-use old advertising images.^[93] A tenant expressed concern after seeing advertising images of her possessions in an article in a newspaper two years after she had consented to having the images taken for advertising purposes.^[94]

Commission’s conclusions

3.103 The Commission is of the view that there should be a time limit on the use of images of tenants’ possessions that are taken for advertising purposes.

3.104 While landlords and agents should be able to use images showing tenants’ possessions for the duration of the campaign they were taken for, they should not be able to use them years into the future without first obtaining the tenants’ consent.

Recommendation

3 Where a landlord or landlord’s agent wishes to use an advertising image showing a tenant’s possessions more than 12 months after the image was taken, the landlord or landlord’s agent should be required to obtain the written consent of the tenant or former tenant before using the image.

3.105 The length of time it takes to sell or lease a property depends on a range of factors, including the location of the property and the nature of the housing market. Allowing landlords and agents to use advertising images of a tenant’s possessions for up to

12 months after being taken ensures they will be able to use the images for the duration of the campaign for which they were initially taken.

Images taken for other purposes

3.106 The Commission was told of a number of cases in which advertising material contained images that had been taken for another purpose.^[95] The Queensland Residential Tenancies Authority described the use in advertising material of images taken during routine inspections as a recurring theme among the complaints they receive from tenants.^[96]

Commission’s conclusions

3.107 As discussed above, the Commission is of the opinion that tenants should have an opportunity to object to the taking of images in certain circumstances. In the next chapter, the Commission proposes a range of notification requirements that would assist tenants to prevent the taking of images that show possessions they do not want seen, including by affording them the opportunity to remove possessions from view or be present when the images are taken.

Recommendation

4 Where an image showing a tenant’s possessions was taken for a purpose other than advertising, the landlord or landlord’s agent should be required to obtain the tenant’s written consent before using the image for advertising purposes.

3.108 Using images that were taken for another purpose denies tenants the chance to avail themselves of these opportunities. It follows that these images should only be published with the written consent of the tenant.

1. Residential Tenancies Act 1997 (Vic) pt 2 div 8.

   ↑

2. Ibid s 91A.

   ↑

3. Ibid s 85(a).

   ↑

4. Ibid ss 86(1)(a)–(b).

   ↑

5. Ibid ss 85(b), 88.

   ↑

6. Ibid s 86.

   ↑

7. Information provided to the Commission by VCAT (4 March 2014).

   ↑

8. Information provided to the Commission by VCAT (4 March 2014). See also Higgerson v Ricco (Residential Tenancies) [2014] VCAT 1214
   
   (26 August 2014).

   ↑

9. Information provided to the Commission by VCAT (4 March 2014). See also Higgerson v Ricco (Residential Tenancies) [2014] VCAT 1214
   
   (26 August 2014).

   ↑

10. Higgerson v Ricco (Residential Tenancies) [2014] VCAT 1214 (26 August 2014) [10] (Member Tyler).

    ↑

11. Ibid [11].

    ↑

12. Jones v Director of Housing (Residential Tenancies) [2013] VCAT 2184 (31 December 2013) [21]–[22].

    ↑

13. Ibid [24]–[29]. Section 68 of the RTA places a duty on landlords to maintain the property in good repair. Section 86 grants landlords a right of entry to carry out a duty under the Act. Section 87 states that landlords must exercise a right of entry in a reasonable manner.

    ↑

14. Ibid [27].

    ↑

15. Jones v Director of Housing (Residential Tenancies) [2013] VCAT 2184 (31 December 2013).

    ↑

16. Information provided by Consumer Affairs Victoria (26 February 2014).

    ↑

17. Ibid. The Freedom of Information Amendment (New Arrangements) Bill 2014 was introduced into Commonwealth Parliament on
    
    2 October 2014. The Bill provided for the abolition of the Office of the Australian Information Commissioner from 1 January 2015.
    
    Office of the Australian Information Commissioner, ‘New Bill introduced to amend FOI and privacy laws’ (media release, 2 October 2014) <http://www.oaic.gov.au/news-and-events/statements>. As the Bill was not considered by the Senate before the summer recess, the Office of the Australian Information Commissioner remains open until further notice. Office of the Australian Information Commissioner, ‘OAIC to remain operational until further notice’ (media release, 8 December 2014) <http://www.oaic.gov.au/news-and-events/statements>.

    ↑

18. Information provided by Consumer Affairs Victoria (19 December 2014).

    ↑

19. Submission 10 (Real Estate Institute of Victoria); Consultation 37 (Roundtable).

    ↑

20. Submission 7 (Matthew Pearce). Consultations 16 (Real Estate Institute of Tasmania); 37 (Roundtable).

    ↑

21. Consultations 24 (Sophie Lyon, general manager, Property Management Division, PhilipWebb); 25 (Michelle Evans, senior property manager, Investor’s Choice Property Management); 28 (Gina Butera).

    ↑

22. Tenants Union of Victoria, The landlord is selling (July 2013) <http://www.tuv.org.au/advice/during-your-tenancy/your-landlord-is-selling/>.

    ↑

23. Submission 1 (Tenants’ Union ACT). Consultations 3 (Tenants Queensland); 6 (Tenants’ Union of New South Wales); 14 (Tenants’ Union of Tasmania).

    ↑

24. Submission 13 (Tenants Union of Victoria).

    ↑

25. Submission 13 (Tenants Union of Victoria). Consultation 37 (Roundtable).

    ↑

26. Consultation 37 (Roundtable).

    ↑

27. Ibid.

    ↑

28. Ibid.

    ↑

29. Office of the Australian Information Commissioner, Is my real estate agent allowed to take photos in my house? <http://www.oaic.gov.au/privacy/privacy-topics/tenancy-and-real-estate/>.

    ↑

30. Ibid.

    ↑

31. The Australian Privacy Principles apply to government agencies and businesses with a turnover of more than $3 million: 6C–6EA Privacy Act 1988 (Cth). Regulation 7(1) of Privacy Regulation 2013 (Cth) stipulates that the Australian Privacy Principles also apply to small business operators that operate a residential tenancy database.

    ↑

32. 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. Those matters include the fact that the information is being collected as well as the purpose for its collection. See Privacy Act 1988 (Cth) sch 1, Principles 5.1, 5.2(b), (d).

    ↑

33. Australian Privacy Principle 3 prohibits organisations from collecting personal information unless the information is reasonably necessary for carrying out their activities. See Privacy Act 1988 (Cth) sch 1, Principle 3.2.

    ↑

34. Information provided to the Commission by VCAT (4 March 2014). Higgerson v Ricco (Residential Tenancies) [2014] VCAT 1214
    
    (26 August 2014).

    ↑

35. Preliminary consultation with a real estate agent (3 February 2014). Information provided to the Commission by the Tenants Union of Victoria (15 August 2014). VLRC online survey.

    ↑

36. Consultations 9 (Caroline Rickard, sales consultant, LJ Hooker Drysdale); 29 (Stephen Raff, CEO, Ace Body Corporate Management, Australia & Singapore). See also Jones v Director of Housing (Residential Tenancies) [2013] VCAT 2184 (31 December 2013).

    ↑

37. Consultation 37 (Roundtable). The right to quiet enjoyment is discussed in more detail in Chapter 5.

    ↑

38. Submission 17 (Wendy Abrahmsen). VLRC online survey.

    ↑

39. Information provided to the Commission by a landlord (27 August 2014).

    ↑

40. Consultation 33 (a tenant).

    ↑

41. Ibid.

    ↑

42. Submission 10 (Real Estate Institute of Victoria).

    ↑

43. Ibid.

    ↑

44. Consultations 25 (Michelle Evans, senior property manager, Investor’s Choice Property Management); 29 (Stephen Raff, CEO, Ace Body Corporate Management, Australia & Singapore); 34 (Real Estate Institute of Queensland).

    ↑

45. Consultation 34 (Real Estate Institute of Queensland).

    ↑

46. Consultation 25 (Michelle Evans, senior property manager, Investor’s Choice Property Management).

    ↑

47. Submission 3 (confidential).

    ↑

48. Consultation 17 (a real estate agent).

    ↑

49. Consultation 30 (a landlord).

    ↑

50. Ibid.

    ↑

51. Consultations 8 (a real estate agent); 9 (Caroline Rickard, sales consultant, LJ Hooker Drysdale); 16 (Real Estate Institute of Tasmania); 24 (Sophie Lyon, general manager, Property Management Division, PhilipWebb); 26 (David Stewart and Leesa Stewart, Market Share Property).

    ↑

52. Consultation 16 (Real Estate Institute of Tasmania).

    ↑

53. Ibid.

    ↑

54. Consultations 10 (Rachel Spurgeon, sales consultant, LJ Hooker Geelong); 22 (Corina Bailey, CEO, Landlord Specialists); 25 (Michelle Evans, senior property manager, Investor’s Choice Property Management).

    ↑

55. Consultation 30 (a landlord).

    ↑

56. Submission 13 (Tenants Union of Victoria).

    ↑

57. Ibid.

    ↑

58. VLRC online survey.

    ↑

59. Submission 11 (Assistant Professor Bruce Arnold).

    ↑

60. Residential Tenancies Act 1995 (SA) s 72(1)(i).

    ↑

61. Residential Tenancies and Rooming Accommodation Act 2013 (Qld) s 203; Residential Tenancy Amendment Act 2013 (Tas) s 26 inserting
    
    s 55A into the Residential Tenancy Act 1997 (Tas).

    ↑

62. Residential Tenancies Act 1995 (SA) s 72(1)(i).

    ↑

63. Government of South Australia, Selling or purchasing a private rental property (11 December 2014) <https://www.sa.gov.au/topics/housing-property-and-land/>.

    ↑

64. Ibid.

    ↑

65. Residential Tenancies Act 1995 (SA) s 72(1)(i).

    ↑

66. Unlike in Victoria, the statutory right to quiet enjoyment in South Australia includes the right to reasonable privacy. This is discussed in detail in Chapter 5.

    ↑

67. Residential Tenancies and Rooming Accommodation Act 2013 (Qld) s 203.

    ↑

68. Ibid. The maximum penalty is 20 penalty units. One penalty unit is currently $113.85 (from 1 July 2014). Queensland Government, Sentencing fines and penalties for offences (4 November 2014) <https://www.qld.gov.au/law/crime-and-police/types-of-crime/>.

    ↑

69. Consultation 3 (Tenants Queensland).

    ↑

70. Preliminary consultation with David Breen, executive manager, Policy and Education Services, Queensland Residential Tenancies Authority
    
    (2 October 2013 and 9 May 2014).

    ↑

71. Consultation 23 (Queensland Residential Tenancies Authority).

    ↑

72. Preliminary consultation with David Breen, executive manager, Policy and Education Services, Queensland Residential Tenancies Authority
    
    (2 October 2013 and 9 May 2014). Consultation 23 (Queensland Residential Tenancies Authority).

    ↑

73. Consultation 23 (Queensland Residential Tenancies Authority).

    ↑

74. Residential Tenancy Amendment Act (Tas) s 26 inserting s 55A into the Residential Tenancy Act 1997 (Tas).

    ↑

75. Consumer Affairs and Fair Trading Tasmania advises that changes to the provision relating to photographs, along with other
    
    minor changes, are currently being drafted: Consumer Affairs and Fair Trading Tasmania, Renting in Tasmania (9 October 2014)
    
    <http://www.consumer.tas.gov.au/renting>.

    ↑

76. Ibid.

    ↑

77. Consultation 16 (Real Estate Institute of Tasmania).

    ↑

78. Consultations 23 (Queensland Residential Tenancies Authority); 34 (Real Estate Institute of Queensland).

    ↑

79. Consultations 1 (a real estate agent); 33 (a tenant).

    ↑

80. Office of the Australian Information Commissioner, Privacy fact sheet 8: Ten steps to protect your personal information <http://www.oaic.gov.au/privacy/privacy-resources/privacy-fact-sheets/>.

    ↑

81. See, eg, Victorian Law Reform Commission, Surveillance in Public Places, Final Report No. 18 (2010) 152; Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Final Report No.108 (2008) 128; Australian Broadcasting Corporation v Lenah Game Meats Pty (2001) 208 CLR 199, 226 [42] (Gleeson CJ).

    ↑

82. Privacy Act 1988 (Cth) s 6(1) (definition of ‘sensitive information’). Schedule 1 of the Privacy and Data Protection Act 2014 (Vic) reproduces a similar definition of sensitive information, with the exception that in Victoria, health information is not included in the definition of sensitive information because it is covered separately by the Health Records Act 2001 (Vic).

    ↑

83. See [2.31]–[2.32].

    ↑

84. VLRC online survey.

    ↑

85. See [2.41].

    ↑

86. Ibid.

    ↑

87. Jacqueline Fitzgerald and Suzanne Poynton, ‘The Changing Nature of Objects Stolen in Household Burglaries’ (Issue Paper No. 62, NSW Bureau of Crime Statistics and Research, May 2011) 2.

    ↑

88. Consultation 25 (Michelle Evans, senior property manager, Investor’s Choice Property Management).

    ↑

89. Section 233A(3) of the Residential Tenancies Act 1997 (Vic) authorises VCAT to terminate an existing tenancy agreement and require a landlord to enter a new tenancy agreement with a tenant where that tenant is a protected person under a final family violence intervention order.

    ↑

90. Family Violence Protection Act 2008 (Vic) s 5.

    ↑

91. Personal Safety Intervention Orders Act 2010 (Vic) ss 5–10.

    ↑

92. Section 3(1) of the Residential Tenancies Act 1997 (Vic) defines a tenant as the person to whom premises are let, or proposed to be let, under a tenancy agreement.

    ↑

93. Consultation 12 (a photographer).

    ↑

94. Information provided to the Commission by the Tenants Union of Victoria (15 August 2014).

    ↑

95. Consultation 23 (Queensland Residential Tenancies Authority).

    ↑

96. Ibid.

    ↑