When copyright isn't consent: The growing legal risks of using photos online
It's becoming increasingly common for ordinary people's photographs to be used in advertising, social media campaigns and online marketing without their knowledge or consent. But what are the legal implications of this?
One of the more widely reported examples of this issue involved a teenager named Alison Chang in 2007.
According to media reports, Alison was photographed by a youth counsellor who later uploaded the image to the photo-sharing website Flickr. The photograph showed Alison making a peace sign and was made available under a Creative Commons licence selected by the photographer.
The story attracted international attention after Virgin Mobile Australia used the image as part of an advertising campaign. The photograph reportedly appeared on billboards, websites and other promotional material alongside marketing slogans.
According to the reports, Alison and her family had not been asked for permission before the campaign commenced and only became aware of it after friends pointed it out.
Legal proceedings were subsequently commenced in the United States. The case itself did not ultimately establish any broad Australian legal principles. However, the publicity surrounding the dispute highlighted a question that remains highly relevant today.
What happens when a business has permission to use a photograph, but nobody has asked the person appearing in it?
That question sits at the heart of many modern disputes involving photographs, social media and advertising.
Under the Copyright Act 1968 (Cth), copyright in a photograph will generally belong to the photographer who took the image. The copyright owner may have the right to reproduce, publish, communicate and license the photograph to others.
However, copyright ownership and personal consent are not the same thing.
A photographer may own copyright in an image. A business may obtain a licence to use that image. Yet the person depicted in the photograph may still object if the use creates the impression that they endorse, support or are associated with a particular product, service or organisation.
This distinction has become increasingly important in an age where photographs are routinely shared through Instagram, TikTok, Facebook and other social media platforms. Images that were originally uploaded for friends and family can be copied, reposted, downloaded and reused in ways never contemplated by the people appearing in them.
The legal risks are not limited to celebrities. In fact, many of the disputes that arise involve ordinary people.
A customer whose image appears in a restaurant advertisement. A gym member featured in a promotional video. A traveller whose social media photograph is repurposed for a tourism campaign.
A patient whose image is used by a health provider. These situations may raise questions under the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth), particularly where the use suggests endorsement, sponsorship, approval or affiliation that does not actually exist.
Section 18 of the Australian Consumer Law prohibits misleading or deceptive conduct in trade or commerce. Section 29 prohibits false or misleading representations concerning matters such as sponsorship, approval or affiliation. Depending on the circumstances, the use of a person's image may contribute to a misleading overall impression, even where the photograph itself was lawfully obtained.
More recently, privacy law has entered the conversation in a much more significant way.
For many years, Australian lawyers faced a difficult situation when advising clients whose images had been used without consent. Someone would arrive carrying screenshots, social media posts or advertising material. They felt embarrassed, humiliated or distressed. Yet identifying a legal remedy was often challenging because Australia did not have a broad, standalone cause of action for invasion of privacy.
That position changed with the introduction of the statutory tort for serious invasions of privacy under the Privacy and Other Legislation Amendment Act 2024 (Cth), which commenced in June 2025.
The new tort is not directed at every photograph taken in a public place. Nor is it intended to prevent legitimate journalism, artistic expression or ordinary photography. Instead, it focuses on conduct involving a serious invasion of privacy.
The legislation requires courts to consider matters such as whether the conduct was intentional or reckless, whether the invasion was sufficiently serious and whether a reasonable person in the plaintiff's position would regard the intrusion or disclosure as highly offensive.
The new tort may be particularly relevant where photographs involve vulnerable individuals or sensitive circumstances. Images of children, patients in medical settings, individuals experiencing trauma or people in obvious distress are likely to attract greater scrutiny than photographs taken in ordinary public settings.
The closer a case comes to involving an affront to dignity, personal vulnerability or highly sensitive information, the stronger the potential argument that a serious invasion of privacy has occurred.
Importantly, the remedies available under the legislation are not merely symbolic.
Courts may award damages for emotional distress and other non-economic loss, grant injunctions restraining publication, order apologies, make declarations and require offending photographs, videos or recordings to be delivered up or destroyed.
The legislation aligns non-economic damages with the cap applicable in defamation proceedings, meaning that substantial awards may be available in appropriate cases.
As social media, artificial intelligence and digital marketing continue to evolve, the legal distinction between owning a photograph and having permission to use a person's likeness is becoming increasingly significant.
Businesses, photographers, influencers and content creators should not assume that because an image is available online, it is available for commercial use.
The fact that a photograph can be copied is not the same thing as having permission to turn the person in it into an advertisement.
Where to from here?
There was a time when photographs lived relatively quiet lives.
They sat in family albums, shoe boxes and picture frames. Occasionally they appeared in newspapers, magazines or holiday slideshows. Their audience was limited and their lifespan was often predictable.
Today, a photograph can travel further in a few minutes than it once could in a lifetime.
It can be reposted, screenshotted, copied, scraped, indexed by search engines, fed into artificial intelligence systems and repurposed for advertising campaigns seen by millions of people. Along the way, the distinction between a photograph and the person depicted in it can easily become blurred.
That is why the legal issues discussed in this article are becoming increasingly important. The question is no longer simply who owns the copyright in a photograph under the Copyright Act 1968 (Cth).
Increasingly, courts, businesses and individuals are asking a different question: what rights does the person in the photograph have when their image is used in ways they never anticipated?
The answer is still developing.
Although the statutory tort for serious invasions of privacy introduced by the Privacy and Other Legislation Amendment Act 2024 (Cth) commenced in June 2025, it remains early days.
A small number of matters have already been filed and courts have begun considering the legislation, but we are still some distance away from having a substantial body of case law explaining precisely where the boundaries will be drawn.
That uncertainty is perhaps unsurprising. New legal rights often begin life much like old photographs: slightly blurry around the edges. Over time, the picture becomes clearer.
What seems likely, however, is that courts will pay particular attention to situations involving vulnerable people, highly sensitive information and conduct that seriously impacts a person's dignity. Images of children, patients, people in distress or individuals caught in deeply personal moments may attract a very different response from courts than an ordinary photograph taken on a public street.
For now, the safest approach remains remarkably simple. If you are a business, influencer, photographer or content creator, do not assume that because a photograph can be found online it can be used however you like.
And if you are the person appearing in the image, remember that copyright ownership is only one part of the legal story.
After all, photographs may capture a moment, but the legal consequences can last much longer.
Disclaimer
The contents of this article are of a general nature only and are not intended to constitute legal advice. Laws change over time and the application of the law depends on the particular circumstances involved.
About the author: Sharon Givoni is a practising intellectual property and commercial lawyer in Australia and the author of the best-selling book Owning It: A Creative’s Guide to Copyright, Contracts and the Law. Her law firm, “Sharon Givoni Consulting”, advises photographers in all areas of the industry—from portrait and fashion to wedding, editorial, and wildlife photography.
Sharon also drafts custom terms and conditions for photographers. E info@iplegal.com.au Phone 0410 557 907
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Cover image: Getty