Good Buy Happy snaps

The issues are contentious. Should anyone with a camera have to get authorisation - consent - of the person they are photographing? What would that mean for a free and open society, and freedom of expression, artistic expression, and the media?

Australian law gives no absolute right to privacy. But the discussion paper canvasses whether the publication of unauthorised pictures taken in public places should be regulated. With children, it asks whether the simple act of taking an unauthorised picture in public should be restricted. And how to manage the jurisdictional issues of a worldwide web, with local content uploaded on overseas hosts?

The internet advocacy group Electronic Frontiers Australia suggested that existing laws covered most situations the paper is canvassing. And the discussion paper agrees that the rowers incident, and the more recent example of "upskirting" - where phone cameras are used to peer up a woman's skirt - may be covered by a new, as yet untested offence in the Commonwealth Criminal Code.

From March this year it became an offence to intentionally use the internet in circumstances which a reasonable person would regard as menacing, harassing or offensive.

EFA's executive director, Irene Graham, says the discussion paper raised challenging issues about privacy and liberty. "We are fundamentally a free speech organisation and consider photos fall into that category," she says, but the internet had attacked people's privacy by potentially creating a "surveillance society".

"This is not just about children. It's about the individual's privacy, and the extent to which all and sundry should be able to take photos and make them available for eternity on the internet."

The group is considering whether there should be a legal right for people to have their images removed from the internet, but the seriousness should be determined by the courts. Would an identifiable photo of a topless beach-goer be serious enough?

"My personal opinion is you should be able to lie on the beach topless without it being put on the internet. People should have some freedom to behave in public without fear. But there's an argument if you don't want naked photos on the internet, don't be naked in public, and that's fair comment as well."

A populated beach has become almost a no-go zone for even professional photographers, who experience first-hand the community's digital age backlash.

"It is almost impossible to operate on the beach now," says Mike Bowers, the photographic managing editor with Herald Publications. "People tend to look at someone with a camera as some sort of pervert. If you are taking photos it is seen to be for some terrorist reason, or for something inappropriate.

"I think people are more focused on their privacy now. I fear that someone's going to get hurt because we have had some quite violent reactions from people thinking you don't have a right to wield a camera in a public place.

"As far as I can see the restrictions will impact on the media, and not have the desired effect on those highly revolting sites people set up."

The Internet Industry Association believes government response should be proportionate to the problem.

"The discussion is good, but we would be very cautious urging regulation, particularly where it can't be established that this is a widespread problem," says its CEO, Peter Coroneos.

"How do we balance the rights and responsibilities of individuals in the digital age where barriers to publications are almost nonexistent, and where there are individual liberties at stake? The last thing we want to be doing is criminalising conduct where there is no improper intent.

"If the Government is seeking to determine what is appropriate context, and the test of publication becomes contextual, it becomes really difficult policy to administer. ISPs are not in a position where they'd either feel competent or resourced to have to determine the appropriateness or otherwise of photos on the internet."

The Australian Privacy Foundation's David Vaile says there is a lot of moral hysteria surrounding the internet, and the discussion paper is "well thought through, an antidote to some of the more hysterical responses".

"It's important not to blunder into this area because it is in fact very complicated, and potentially very sensitive," he says. "It represents, in some ways, a new development in the capacity of individuals now to abuse privacy on a mass scale that traditionally has been the province of government and big business, and it raises the question about the appropriateness of more restrictive protection."

He says the paper's tacit acceptance that it is unviable to ban photography in public places is common sense.

"It would drive people nuts. The vast majority of those photographs would be innocuous. There might be one pedophile taking photos at any particular moment, and 100,000 people taking pictures of their kids at the beach."

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p.s. Laws will only apply if you can afford a cammera

Oh and you can write someone a letter. Maybe even include a picture of your neighbour for good measure...

Submissions on the discussion paper should be forwarded by October 14 to Director, Civil Law Policy, Department of Justice, Level 4, 55 St Andrews Place, Melbourne, VIC 3002.