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Burning Question: Property Managers, Photography and Children

We recently received this question in response to our article on Photography and Privacy

“Hello, Thank you for the great articles written. Can you tell me (as I am a landlord but have also been witness to my daughter (as a lessee) dealing with a male property manager coming into her rented home and videoing and photographing every room in her home including where her 2 young daughters were playing 3 and 6) what the rights of property managers/landlords are to the use of digital photography?

As a landlord we only photograph the premises prior to the tenants moving in and do not photograph again unless there is a very specific area needing maintenance.  Then a digital photograph is taken to send to contractor.

I was agast at the attitude and behaviour of the property manager doing a scheduled rent inspection on my daughters leased property.

I would appreciate any clarification (incidentally this happened 12 mths ago and is not something I am pursuing.  Thank You”

Answer: It is not illegal to capture an image of a person whilst in a public place. You can take an image of a person on private premises, but you must be mindful of trespass.

The Privacy Act 1988 (Cth) treats images or photographs as personal information, if you can identify a person by the image captured. An ‘APP entity’ covered by the Privacy Act may only collect personal information (including images) if it is reasonably necessary to the organisation’s function. The Privacy Act 1988 (Cth) will apply to a real estate agent who is taking photographs of a residential property.

The real estate agent should inform a tenant of the premises why they need the personal information, how, where and when the images will be taken, where and to whom the images will be shared, the agent’s contact details and whether the images will be sent overseas. Generally, consent is not required to collect an image, unless sensitive information (information relating to race, sexual orientation, religious beliefs etc.) is captured.

Tenancy laws cover the circumstances upon which a real estate agent can enter the premises, including the taking of photographs. You have a right to quiet enjoyment and the agent must not interfere with your privacy whilst on the premises. You can ask that the agent not photograph items which you feel infringe upon your privacy (e.g. the taking of images which depict personal possessions, photographs or children). You can also ask to view photos the agent has taken inside the premises.

If you feel that a real estate agent has mishandled your personal information or breached your right to privacy, you can contact the real estate agent directly with your concerns or escalate the complaint to the appropriate state tenancy authority .

Disclaimer: This information is for general purposes only and should not be relied upon as professional legal advice.

This article by Elise Nisbet

Elise NisbetElise Nisbet (LLB, GDLP, BCom (Hons)) is a qualified lawyer, working for a Top 50 ASX listed Company. She is an award-winning academic researcher and skilled legal writer with experience in banking and finance, corporate governance, risk management and compliance.

Last updated: 2 July 2020

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