SV19 - Supervision of Persons Filming

Purpose

To provide guidance into the use of cameras, video recorders and their images in aquatic facilities

Overview

Images of people and activities in Aquatic Facilities including Lifeguards and Water Safety Instructors are a part of Australia’s cultural history and identity. However the increasing amount and convenience of digital photography and video recording devices has led to safety concerns.

Laws and Regulations

Privacy Act

Under the Privacy Act if an individual’s identity is apparent, or can reasonably be ascertained, from a photograph or other image, then the collection, use and disclosure of that image is covered by the Privacy Act. This extends to video and digital images as well as photographs.

As with other forms of personal information, the coverage of images is limited by the scope of the Privacy Act. For example, an image is not covered by the Privacy Act if it was taken by an individual who is acting in their private capacity. The image is also not covered if the image was taken by someone acting on behalf of a small business. Similarly, images taken by a person acting on behalf of a state or territory agency may not be covered by the Privacy Act, but rather covered by a state or territory law.

Where an event is held on private property, such as an aquatic facility (but not, for example, a council road or park), the owners or operators on their behalf are able to restrict or ban photography (e.g. some council owned facilities will not allow mobile phones or cameras in change rooms or toilets).

Aquatic Facility staffs need to be aware that a person may still be able to photograph or record from outside the property boundary (unless taken for indecent or improper purposes).

Criminal Law

Criminal laws with regards to unauthorised photography or digital recording are based on state legislation and differ between the States.

There are a number of existing criminal laws with regard to the taking and use of unauthorised images and recordings. Some of these are as follows:

• The use of surveillance devices to record a ‘private activity’ without consent;
• Filming for indecent purposes;
• Committing indecent or offensive acts in a public place;
• "Upskirting"; and
• Using a telecommunications network or carriage service to facilitate certain offences.

The majority of these laws involve elements of private activity. Activity carried out in a public environment, or an activity in a place where privacy may not be entirely expected, such as swimming, park activities, and so on, may not be covered by the particular offence.

In certain States/territories it may also be an offence to intentionally distribute images without a person’s consent; irrespective of whether the image is offensive in nature.

Images of Minors

Consensual photos of a minor (including one’s own child) may also contravene criminal laws and censorship laws if the child is photographed in a provocative or offensive manner. Some of the laws with regard to children are as follows:

• Making an image of a minor engaged in a private act for prurient purposes
• Making indecent visual images of a minor under the age of 16; and
• Other child pornography offences.

Certain criminal offences may not cover images of minors that are not explicit in nature, but that may be used for offensive purposes. This is relevant to aquatic facilities insofar as images of people in swimwear are concerned.

Photography or Video Recording at Aquatic Facilities

Photographs or video recording of people in aquatic facilities may be taken for a variety of innocuous reasons including but not limited to:

• Parents / Carers taking photographs or video recording of their child participating in an activity
• Tourist taking photographs or video of the aquatic facility and its features

The owner or operator of an aquatic facility may prohibit the use of cameras and video recording devices within an aquatic facility. This should be clearly identifiable to aquatic users at the point of entry and throughout the facility. If the owner or operator of an aquatic facility allows the use of cameras and video recording devices the following should apply

• In the first instance however the taking of photographs or video in an aquatic facility should be authorised by a Staff member prior
• If an individual does not wish to be photographed or recorded they should approach the photographer and make it clear to them
• If a staff member of an aquatic facility becomes aware of any persons who appear to be taking photos or video recording of unrelated persons, competitors, swimmers or minors and they believe the images or recording may be ‘unwarranted or obtrusive’ they should approach the person to enquire what they are doing and why are they taking the photographs
• If the staff member is unable or unwilling in the circumstances to ask the person or otherwise believes that the persons is taking inappropriate images he or she should notify the police or their relevant security personnel
• Staff members should document the incident and take reasonable steps to monitor and remember the persons attire, appearance and distinguished characteristics

Displaying Images of Minors by Aquatic Facilities

The owner or operator of an Aquatic facility may wish to promote the activities of their aquatic facility on their website or in magazines etc. In these instances the following guidelines should be considered:

• The owner or operator of the aquatic facility should obtain written permission from the parent/guardian prior to taking the images of the minor
• The owner or operator of the aquatic facility should ensure that all persons relevant to the minors wellbeing are aware of the way in which they image is to be used and how long the image will be displayed
• The owner or operator of the aquatic facility should wherever possible refrain from naming the child
• The owner or operator of the aquatic facility should not display information about the minors hobbies, likes, school etc. as this has the potential to be used as grooming tools

References

• Surveillance Devices Act 1999 (Vic); Surveillance Devices Act 2000 (NT); Surveillance Devices Act 1998 (WA); Listening and Surveillance Devices Act 1972 (SA) (for listening devises).
• Summary Offences Act 1988 (NSW); Summary Offences Act 1953 (Qld).
• Criminal Code (Qld); Summary Offences Act 1988 (NSW); Police Offences Act 1935 (Tas).
• Summary Offences Act 1966 (Vic) div 4A; Summary Offences (Indecent Filming) Amendment Bill 2008 (SA).
• Criminal Code (Cth) s474.14; s474.17; s 474.19; s474.20; s474.22; s474.23.
• Criminal Law Consolidation Act 1935 (SA) s 63B.
• Criminal Code (Qld) s210(1)(f).
• Crimes Act 1958 (Vic); Criminal Code Act 1924 (Tas).
• SLSA Photograph Policy