We recently assisted a client with a scenario where a parent was taking photos at a children’s sporting fixture without the necessary approval, however claimed they were not bound by any policies or by-laws, as they were not a member of the sporting organisation and were simply a member of the public. This raised some interesting questions about what policies can be enforced legally by volunteers of sporting organisations in such a scenario, which we explore below.
As a starting point, the law in Australia does not generally prevent the filming of someone (including children) in a public place, or in a situation where a person wouldn’t reasonably expect privacy, without their consent. There are, however, laws to prevent the use of images (of adults or children) for inappropriate or indecent purposes.
Where a sporting event is held on private property (such as privately owned or government owned sporting arenas and complexes), the owner, occupier or hirer of the property has the right to set parameters around photography and videography at its venue. These parameters may include restrictions, bans or requirements to obtain consent. Ideally, if the sporting organisation is the occupier or hirer of the venue, it would be involved in setting these parameters for the event with the property owner.
If a person is a member they must comply with the club or association policies and by-laws. If the event or activity is in a public place, the member is still required to comply with the by-laws and behavioural policies. However, a non-member would not (and therefore be within their rights to take photos etc).
At its own venue, an association volunteer can enforce its policies, by-laws, conditions of entry etc. In a public place, only its members are captured.
Of course, the difficulty with a Photo and Video Policy is policing it and being consistent. A person with a professional camera should be treated the same as a person with an iPhone, although practically the latter is harder to notice and manage.
A member of the public / non-member would be captured by the conditions of entry to a venue and these conditions should be documented and displayed where appropriate (for example posters visible at the venue, terms set out on the website and on tickets, where relevant).
From a practical point of view, it is the policing of such terms and management of any breaches that can be difficult.
In scenarios such as the one faced by our client, we recommend that the appropriate response to the individual involved in this situation is to acknowledge that whilst they are not a member of the club or association, the sporting complex is a privately owned or Council owned venue managed by the sporting organisation and therefore any persons must, whilst on that property, comply with the conditions of the organisation as the venue operator, including those relating to photography and videography.
