Therefore, it is important be mindful of where you are filming. If you are on someone’s property, it is best to get their consent before recording. Although you can’t film on private property without consent, filming someone on their property from a public space isn’t an offence. For example, it isn’t illegal to film a neighbour’s property from your own, or film someone on private property from a public footpath – although certain other laws may apply here, depending on the circumstances. In NSW, the following are criminal offences: In a private space, there are some activities where filming someone without their consent amounts to a criminal offence. Filming a person engaged in a private act without the person’s consent (s91K of the Crimes Act).A “private act” is if the person being filmed is in a state of undress, using the toilet, shower or bath, engaged in a sexual act of a kind not ordinarily done in public, or engaged in any other like activity, and a reasonable person would ordinarily expect to be afforded privacy in that circumstance. For example, using a webcam to film another person engaged in a “private act” must require the consent of the person being filmed. Failure to obtain the subject’s consent amounts to a criminal offence, and the maximum penalty is up to two years’ imprisonment. If the subject is under 16 years of age, the prison sentence increases, up to five years. Filming a person’s private parts (s91L of the Crimes Act).This is similar to filming a person engaged in a private act. Consent is required when filming a person’s private parts, and recording without it amounts to a criminal offence where the maximum penalty is two years’ imprisonment, or five years if the child is under 16 years of age.
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