Have fun, be careful, be alert
High profile Australian senior criminal lawyer Bill Potts believes parents should have fun, be careful, and be alert.
“Criminal lawyers and police offers see the worst behaviours by people and to that extent we have to be careful and vigilant without being paranoid,” Mr Potts says.
Mr Potts says the fundamental purpose of the law is to ensure that children are protected and not sexualised or be made the subject of sexual exploitation, but if you are in a public place there is no reasonable expectation of privacy.
“Parents taking photographs of their own children in the bath or naked are not committing any offence unless those photographs are then distributed for the purpose of exploiting their children.
“The reason for this is that it is every parent’s delight to record memories of their children and record their image for embarrassment at their 21st birthday party. The criminality lies where someone takes photos of children in a sexualised way or publishes or distributes them for that purpose.
“However, for adults if you are in a public place there is no reasonable expectation of privacy. You can’t protect your own image from being photographed.
“If you are in a private place such as a back yard or private swimming pool there is every expectation that you won’t be photographed. Flying a drone over is probably trespassing. If someone is using a camera from a distance to take photographs of children there is a breach of privacy. Increasingly, there are laws to deal with those kinds of breaches of privacy.
“If someone is taking photos of your naked child on the beach and they are not part of your family group they are in serious danger of being charged with being in possession of, or producing, child exploitation material.
“You shouldn’t wrap your kids in cotton wool. We shouldn’t be paranoid about these things, but parents have to be careful to ensure that their children are not exploited by bad people.”
The photographer holds the copyright
Mr Potts says those parents who choose not to place photos of their children on social media but find images of them shared through other people’s photos of birthday parties or other joint childhood events have very limited legal rights.
“Their rights are extraordinarily limited. Whoever takes the photograph holds the copyright to those photographs.
“We don’t want to turn a five-year-old’s birthday party into a legal minefield,” he says.
“You also don’t want to put things on the internet that identifies where your child lives or the inside of your house.
“Much of the expectations of privacy we had are gone completely.”