Can a business use a photo of me in their advertising without my consent?

The answer is it depends on the circumstances in which the photo was taken and what it reveals about you. If the photo was taken in a public place and you’re simply a passer-by captured in the image, then a business can justify using that photo in its marketing. This is subject to a limit in the Privacy Act on taking photos in circumstances where it would unlawful, unfair or intrude to an unreasonable extent upon the personal affairs of the individual concerned (privacy principle 4).

In other words, if you were photographed in your home, or workplace, or you were portrayed as a customer, then the business should seek your consent to use the image.

Here are some examples of cases we investigated:

• Shopper complains about his photograph being taken for publicity purposes
• Man complains about publication of his photograph in a booklet
• Daughter's photograph used to promote holiday programme
• Health centre used photographs in promotional material
• Personal information on internet was publicly available
• Privacy Commissioner names photography agency for misleading practices

We have also had enquiries about whether using a photo of someone’s property is a privacy breach. The answer is probably not. In one case, a roof cleaning business used a photo of a person’s house. The photo was taken from the street and did not capture any individuals in it. Since you generally cannot identify an owner from a photo of the house, the ad in question did not raise issues under the Privacy Act.

If you have a privacy issue that involves advertising, you can complain to our Office and also to the Advertising Standards Authority.(external link)