Photography in Public Places: New Zealand Legal Overview
In New Zealand, the act of taking photographs of individuals in public places without their explicit consent involves a balance between the photographer's right to freedom of expression and an individual's right to privacy. While there is generally no blanket prohibition against such photography, specific circumstances and the subsequent use of the images can raise legal considerations under various New Zealand laws.
Freedom of Expression
The right to freedom of expression is a fundamental liberty in New Zealand. This right allows individuals to seek, receive, and impart information and opinions, including through visual mediums like photography [Source: New Zealand Bill of Rights Act 1990, s 14]. This provides a general basis for photographing in public spaces, provided the act itself does not contravene other specific laws.
The Privacy Act 2020
The Privacy Act 2020 is New Zealand's primary legislation governing how personal information is collected, used, stored, and disclosed. 'Personal information' is defined as information about an identifiable individual [Source: Privacy Act 2020, s 7]. A photograph of an identifiable person is considered personal information under this Act [Source: Privacy Act 2020, s 7].
The Act's 13 'information privacy principles' outline the rules for handling personal information [Source: Privacy Act 2020, s 22]. These principles primarily apply to 'agencies', which include organisations, businesses, and government departments, but can also encompass individuals if they are collecting personal information for a specific purpose beyond purely personal use [Source: Privacy Act 2020, s 8].
Collection of Photos in Public
While a photograph of an identifiable individual is personal information, the mere act of taking a photograph of someone in a public place where they are publicly observable and have no reasonable expectation of privacy, for purely personal, non-systematic purposes, is generally not considered a direct breach of the Act's collection principles (such as Principle 1 regarding lawful and necessary collection) [Source: The Privacy Act 2020, s 22, Principle 1, and the general interpretation of the Act's scope regarding publicly observable information]. The Act's focus is typically on information collected in circumstances where there is an expectation of privacy, or where information is collected systematically by an agency for a specific, identifiable purpose related to that individual.
Use and Disclosure of Photos
The subsequent use or disclosure (e.g., publishing or sharing) of photographs, particularly if it leads to harm, unfairness, or an intrusion upon privacy, is more likely to fall under the scrutiny of the Privacy Act. Principle 10, for example, states that an agency holding personal information collected for one purpose must not use or disclose it for another purpose unless certain exceptions apply [Source: Privacy Act 2020, s 22, Principle 10].
Harmful Digital Communications Act 2015
The Harmful Digital Communications Act 2015 (HDCA) addresses online communications that cause harm. A digital photograph shared online can be considered a 'digital communication' [Source: Harmful Digital Communications Act 2015, s 3]. It is a civil duty not to post a digital communication if it causes 'serious emotional distress' to the victim and breaches one or more of ten 'communication principles' [Source: Harmful Digital Communications Act 2015, s 22(1)].
These principles include 'disclosure of sensitive personal facts' (even if true), 'making a false allegation', 'harassing the victim', or 'intimate visual recordings' (which are also covered by the Crimes Act 1961) [Source: Harmful Digital Communications Act 2015, s 22(1)(d), (g), (h), (i)]. Therefore, while taking a photo in public may be permissible, publishing it online without consent could become unlawful if it causes serious emotional distress and breaches one of these principles.
Crimes Act 1961
In specific circumstances, taking a photograph of a person without their consent can constitute a criminal offence under the Crimes Act 1961. This primarily relates to 'intimate visual recordings'.
Intimate Visual Recordings
It is an offence to make an 'intimate visual recording' of another person without their consent, or to distribute such a recording without consent [Source: Crimes Act 1961, s 216G, s 216H]. An intimate visual recording involves a person in circumstances where a reasonable person would objectively expect to be afforded privacy, typically when naked or engaged in private acts [Source: Crimes Act 1961, s 216G(2)(b)]. This provision generally does not apply to casual photography in genuinely public spaces where no reasonable expectation of privacy exists.
Other Considerations
While not explicitly legislative prohibitions, repeated or intrusive photography that causes alarm or distress could contribute to a course of conduct amounting to harassment under the Harassment Act 1997, or other general public order offences, depending on the specific behaviour and intent.
When to Seek Independent Legal Advice
Individuals seeking specific guidance on their legal position regarding photography, privacy, or digital communications are encouraged to consult with a legal professional. Official bodies like the Office of the Privacy Commissioner and NetSafe can provide information and support. Free legal advice may also be available through Community Law Centres across New Zealand.
Key Resources
- Privacy Act 2020: https://www.legislation.govt.nz/act/public/2020/0031/latest/whole.html
- Harmful Digital Communications Act 2015: https://www.legislation.govt.nz/act/public/2015/0063/latest/whole.html
- New Zealand Bill of Rights Act 1990: https://www.legislation.govt.nz/act/public/1990/0109/latest/whole.html
- Crimes Act 1961: https://www.legislation.govt.nz/act/public/1961/0043/latest/whole.html
- Office of the Privacy Commissioner: https://www.privacy.org.nz/
- NetSafe: https://www.netsafe.org.nz/