This may have some further implications

[agb]

I cannot find that this has been posted here before.
If not then it is worth a read.
https://www.facebook.com/permalink.php?story_fbid=506341452762426&id=114370208626221

[I @ M]

I cannot find that this has been posted here before.
If not then it is worth a read.
https://www.facebook.com/permalink.php?story_fbid=506341452762426&id=114370208626221

Quite frankly I would like to review the whole thing through channels other than failbook postings so links to court appearances etc would be appreciated.

On that note, if the conviction seems worthy of appeal and the photographer is not doing anything untoward I will stick my hand up to throw $100.00 towards his appeal costs.

Anyone else like to join in if the case is worthy?

[ricktas]

I agree re the FB discussion. As the photographer is 'a friend' chances are the reporting is biased. Without the full facts as presented to the magistrate it is hard to know if we are being told everything, and perhaps important facts have been left out of the reporting on FB to give an unfaithful and unreliable bias.

[Mark L]

Interesting. Did a quick search around, not much showing up yet except the person from Graham's link posting in various places other than FB.
I'm a bad speller but ""disorderly behavior causing offense"".
Anyway, if that's what he was convicted of, then it's yet to be seen what this means for photographers.

[ricktas]

The FB page has now been deleted. From reading through it, and some responses by what I assume might be people associated with the subject of the photo in question, it might have been deemed as being 'up skirting'. Remember the photo under the magistrates attention was taken with an iPhone, not a DSLR. I think there was more to this than that provided by the 'friend' who posted it originally, and maybe they were not aware of exactly what the content of the single photo that the magistrate based their decision on, was either, as the magistrate was unlikely to have shown it to the visitors to the courtroom.


QUOTE:
....one photo in particular, even though he did not try to disguise what he was doing and the subject was quite happy to be in public dressed in the manner that she was. As a result his behavior did cause offense and so could be considered disorderly, so found guilty as charged.

So he was not convicted of taking photos in general, but taking one particular photo that from this statement would appear to suggest the lady was scantily clad and what he captured might have been deemed inappropriate. The photographer had the choice to not take that photo, but the photographer did take the photo, and that is where he/she came unstuck. Yes the lady concerned may have needed to put on more clothing, but that is a different offense and the Police could have asked her to, or charged her with public indecency, but that does not make what the photographer did, acceptable, in my view.

[Bear Dale]

I don't 100% follow this because of a lack of facts, though I fail to see how it can be an offense to take a photograph of a person in public regardless of what they're wearing (or not) and be charged.

There must be something more to this story.

[ricktas]

Here is the entire original post (as per FB, Whirpool, reddit and Flickr..and other sites as well now)



"Photographers! Possibly a very dangerous legal precedent has just been set. Read and consider the implications

I've just left Perth Central Court after sitting through the trial of a photographer friend and colleague. He was charged with "Disorderly behavior causing offense by taking photographs without consent" after an individual objected to him taking photographs, possibly of his girlfriend, without permission whilst out celebrating new years eve at the start of this year.

The photographs were taken on my friend's iPhone and were amongst several captured whilst out celebrating the night. They were taken in a public space and the photographer did not engage in any furtive or dodgy behavior (ie no upskirting or similar sneaky attempts to see things that shouldn't be seen). The CCTV footage tendered to the court merely showed him sitting there snapping away from time to time.

So, as he is doing this, a guy who appears slightly intoxicated and obviously belligerent, confronts Al, grabs his phone and heads off. Al follows and finds the guy handing the phone to some policemen nearby and complaining that Al is taking photographs without asking permission of the subjects in the photos. The police inspect the images and ask if they are his pix and furthermore why he has not sought permission?

Al responds by acknowledging that he took the photographs and points out that as he was in public space he does not need to seek the subject's consent as their is no right to privacy (from photographs) under Australian law whilst in public and it was quite obvious to all that he was taking photographs, so he has committed no offense.

The policeman obviously disagreed and according to the prosecution statement today, took him into custody "for his own protection" as the guy who took Al's phone and his mates were obviously upset by Al's behavior.

Anyway, arrested, charged with 'Disorderly behavior causing offense by taking photographs without consent'.

So, he goes to court today and we view the CCTV footage which clearly shows Al sitting down chatting to his mate and every once in a while snapping a photograph. From the footage and by any reasonable measure, there was nothing that would ordinarily be considered 'disorderly', furtive or disruptive in how he was behaving. As the magistrate pointed prior to adjourning to consider his verdict, he was of the opinion that there were many more disorderly people in the CCTV footage than Al.

Back in court at 2.15. The magistrate talks about the Surveillance Devices Act and how that does not apply in this instance. Also confirms that under Australian law and within the circumstances of this case, Al did not need to seek the permission of the subject to take their photographs. Nor could they expect not to be photographed. So, no offense committed there.

However... and this is where it becomes scarey for us photographers. Some members of the public did object to him taking photos without permission and one photo in particular, even though he did not try to disguise what he was doing and the subject was quite happy to be in public dressed in the manner that she was. As a result his behavior did cause offense and so could be considered disorderly, so found guilty as charged.

The magistrate said that he felt that there could be more clarification regarding photography and where the line is drawn... I got the impression that he was suggesting an appeal so that it could be further tested. But on the CHARGE presented to him, "disorderly behavior causing offense" the prosecution's case was proven beyond all reasonable doubt. And as an aside, I don't think Al's pockets are deep enough to mount an appeal so this precedent stands to be considered in future cases.

So, what does that mean for us photographers? Well, on the face of it, the basis that people don't have an inherent right to privacy and can be photographed in a public place does not change. HOWEVER, if somebody objects to having a photograph taken and is of the belief that the act of doing so in inappropriate or illegal (regardless of whether it is or not) then the photographer may find themselves in court charged with a 'one shoe fits all' type of charge such as disorderly behavior and as happened in the case today, found guilty.

Think about the implications of that, particularly if you are a street or documentary photographer."

[Kym]

http://www.reddit.com/r/photography/comments/1bk0s7/perth_photographer_charged_with_and_found_guilty/

[dt86vyss]

as if we dont already feel uncomfortable enough trying to take pictures in public... This just adds to the pain! People don't seem to have anything better to do with their time other than making mountains out of mole hills...:(

[agb]

About 3/4 the way down Kym's link the photographer in question tells his version of events. Look for airozi2.

[ricktas]

About 3/4 the way down Kym's link the photographer in question tells his version of events. Look for airozi2.

Interesting, cause he states he is in a kebab shop and all this took place inside the shop. This is NOT public space, and thus all the rules about photographing in public are not part of this scenario. The original 'friend' who posted this on the net has lead people to believe that this was taken on a street, in a park etc, not inside a private business. If someone objects to, or does not want photos taken on private property, they have every right to request/demand that that does not happen. he even goes onto say he tried to ignore the guy and take the photo anyway. Sorry, but this 'photographer' could have approached this in a much better way, and saved himself a heap of problems. he ended up in court mostly due to his own actions.

[bricat]

Just to clarify...It can be a public place even though it is on private property. That is if it is a kebab shop and the public enter that shop and stay in front of the serving counter where the rest of the customers stay. On the other hand if you can only enter via invitation (verbal etc) it may be different.... Then again the laws vary from State to State in this nation cheers Brian

[ricktas]

Just to clarify...It can be a public place even though it is on private property. That is if it is a kebab shop and the public enter that shop and stay in front of the serving counter where the rest of the customers stay. On the other hand if you can only enter via invitation (verbal etc) it may be different.... Then again the laws vary from State to State in this nation cheers Brian

agree they vary from State to State. In Tasmania, private property, even if accessible to the public, is regarding as private. It would be interesting to see how an 'invitation' is determined, bricat, one could argue that 'open' on the door was an invitation to enter, and thus it is still a private space, albeit one with an invitation to enter.

I still think there is more to this than has been divulged publicly. Unless the magistrate released the photo, we really are not in a position to have all the facts available to us. I certainly think the original photographer who posted it on the net, and the photographer himself are going to try and paint themselves in a reasonably favourable light. I feel the magistrate has upheld the law, as he sees it, which is his job.

[bricat]

"I still think there is more to this than has been divulged publicly. Unless the magistrate released the photo, we really are not in a position to have all the facts available to us. I certainly think the original photographer who posted it on the net, and the photographer himself are going to try and paint themselves in a reasonably favourable light. I feel the magistrate has upheld the law, as he sees it, which is his job." END QUOTE

Ain't that the truth.

[EB Alex]

That was one of my TAFE lecturers that wrote that up and attended the court case. I can see that there is obviously a loophole in the law here and it has been exploited against the photographer. Obviously they were offended by the picture taking, whether it was seedy or a perfectly innocent photograph and in taking offence has meant that the law could be used against the photographer. Where it gets fuzzy is what exactly can be considered offensive, which I believe leaves the power unfairly against the photographer.
So theoretically you could say "his face offended me" and that person is prosecuted!