Police Photography and Privacy: Identity, Stigma and Reasonable Expectation

Abstract

In October 2010, police surveillance of a climate change rally at a Victorian power-station resulted in Australia’s first legal challenge to police retention of photographic images taken in a public place. This article explores the privacy jurisprudence from various jurisdictions addressing protection from photography in public spaces and argues that the European approach under Article 8 of the ECHR which marginalises the traditional private/public distinction created a new relationship between privacy law and ‘identity’. In particular, it suggests that protections against stigmatisation associated with forbidding the retention of criminal images outside of the context of conviction operate as a negative protection of identity - a freedom from being identified as criminally suspect. The article explores the history of police and judicial photography, the relationship of photography to social class, the knowledge-regimes of photography and systematised file-keeping, and the evolving liberal protections from the state from the end of the 18th century. In doing so, it identifies an evolution in social understandings of photographic technology and tracks those evolutions in the development of privacy law.

Keywords: Privacy Law, Media Studies, Police Photography, Legal Theory