Unauthorised Photographs on the Internet

Unauthorised Photographs on the Internet

What Australia’s New Privacy Tort Means for Posting Photos Online

There was a time when the biggest concern about unauthorised photographs was someone sneaking a photo on a mobile phone and uploading it to a website. That was the focus of the original article, which discussed the 2005 Attorney-General’s agenda around unauthorised photographs on the internet and the growing concern about camera phones, voyeurism and online publication.

Nearly two decades later, the problem has not gone away. It has simply upgraded its phone, opened a TikTok account and learned how to use AI.

Today, photographs can be taken, edited, shared, tagged, screenshotted, reposted, scraped, searched, meme-ified and circulated globally within minutes. A photo that begins as a joke between friends can become evidence in a dispute, a viral humiliation, a workplace issue or a privacy complaint.

So, can you photograph someone without their consent in Australia?

The answer is still: sometimes, yes. But the legal risks around what you do with that photo have changed significantly.

For many years, Australia did not have a broad, general right to privacy.

That meant that taking or publishing a photograph of someone without consent did not automatically give them a legal claim. However, that position has now shifted. The Privacy and Other Legislation Amendment Act 2024 (Cth) introduced a new statutory tort for serious invasions of privacy, and those provisions commenced on 10 June 2025. See Mal to post the old blog that said that: Unauthorised Photographs on the Internet – Sharon Givoni Consulting

What this actually means is that individuals now have a potential right to sue where there has been a serious invasion of privacy.

The tort can apply where someone intentionally or recklessly intrudes upon another person’s seclusion or misuses information relating to them, and where the public interest in privacy outweighs competing public interests.

That does not mean every awkward photo, unflattering angle or public street image will create liability. The law is not designed to ban ordinary photography, journalism, artistic expression or legitimate public interest reporting.

But it does mean people need to think more carefully before posting, sharing or commercially using images of others online. Here are some scenarios:

• Imagine someone secretly photographing a person through the window of their home and posting it online. That could potentially raise serious privacy issues.
• Imagine a private image being shared in a group chat and then uploaded publicly without consent. That could also create legal risk.
• Imagine a business using a customer’s photo in an advertisement, making it look like that person endorses the business. That may raise issues under privacy law, consumer law and possibly passing off or misleading conduct.
• Imagine a school, gym, medical clinic or workplace posting identifiable photographs of people without proper consent. Depending on the circumstances, privacy, workplace, child safety and contractual issues may arise.

The key point is this: taking the photograph and publishing the photograph are often two very different legal questions.

The old article noted that public concern often related not merely to the taking of an image, but to how that image was later used. That remains true today, except the stakes are much higher because the internet has become faster, more permanent and much harder to control.

The Privacy Act 1988 (Cth) may also be relevant where organisations collect, use or disclose personal information, including images, in the course of business. The Online Safety Act 2021 (Cth) may be relevant where intimate images, cyber abuse or harmful material is posted online. Surveillance devices laws may also apply, although these vary between states and territories. There may also be criminal laws involved in serious cases, especially where images are taken in private places, involve children, intimate images, stalking, harassment or threats.

AI adds another twist.

Photographs can now be altered, enhanced or used to create fake images, deepfakes or misleading visual content. Even where the original photograph was lawfully taken, using it to generate a false or humiliating image may create significant legal risk.

The practical lesson is simple: before posting someone else’s image online, pause.

Ask yourself whether the person was in a private situation, whether the image could embarrass or harm them, whether they consented to this particular use, whether children are involved, whether the image is being used commercially and whether there is any genuine public interest in publishing it.

If the answer makes you squirm, that is usually a sign to slow down.

How Sharon Givoni Consulting Can Assist

At Sharon Givoni Consulting, we advise individuals, businesses, content creators, influencers, photographers, schools, employers and online platforms on the legal issues surrounding photographs, social media, privacy, copyright, online harms and unauthorised publication.

We can assist with takedown requests, cease and desist letters, privacy advice, social media policies, image consent forms, website terms, workplace photography issues and disputes involving unauthorised use of images online.

The internet may move quickly, but legal consequences can last much longer. Getting advice early can help prevent a bad post from becoming a serious legal problem.

The Internet Never Really Forgets

A photograph can be uploaded in seconds, but removing it can be much harder.

Even if a post is deleted, copies may already exist in screenshots, archives, group chats, search engines, AI datasets and social media shares.

That is why privacy, consent and online reputation have become increasingly important legal issues in Australia.

Before posting an image online, ask yourself:

Would I be comfortable if this image appeared on Google, LinkedIn, TikTok or in a courtroom years from now?

If the answer is no, think twice before clicking “share”.

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Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.