This is a photo of my best friend using her personal device while we were having a night out together around 8 months ago. I was back in Vietnam during the time for a holiday. We went for dinner then having some milk tea and sweets for dessert afterwards. We had been talking a bit then taking a few selfies together and then, this happened. She was on her phone and so did I. Space within the milk tea shop where we were suddenly going completely quiet. I looked up and saw my friend smiling at her own screen. And if you take a closer look, there was also a couple behind her who are also busy with their own phones doing their own stuff.
I took this photo just because I wanted to save the most natural moments we had together, well, until I’m back to Australia and the need to use this photo for my academic purpose arises.
At the time I pictured Cas (my best friend’s name, I don’t know why I mention this so late), I had not asked for her agreement on me picturing her. However, once I had decided to publish her photo, I asked for her permission. This also reflects my own code of ethics when I feel free to take photos of people around me without asking them beforehand, but certainly ask for their consent before using their photos for any reasons.
Nevertheless, a concern has flashed through my mind when I ask Cas whether I can use her photo for my blog post or not. That if I take her photo in Vietnam but publish it in Australia, will her privacy and personal image be protected under which country’s legislation?
According to Arts Law Centre Australia (2016), there are neither “publicity or personality rights” nor the “right to privacy that protects a person’s image” in Australia. In the same document, the centre also reveals that there is no “tort of invasion of privacy” within the country at the current timeframe. While in Vietnam, a person is protected by the government law for their privacy rights when being photographed. Specifically, the Vietnam Social Legal stipulates that the use of the image of the individual must be approved by that individual (Vietnam Ministry of Justice 2017). Also, if an individual’s image is used for a commercial reason, remuneration has to be paid regards to the usage. If for other reasons, permission needs to be taken into account. The contrast in between the two country’s legislations has brought me to the concern of the gap in protecting people’s rights within the same media space (which are the social media platforms in which their photos and private captured moments are being shared), but between different physical places. The issue is now not about if you have already had the permission to take photos and publish them or not, but rather of where you choose to publish them.
Although there’s an obvious gap, the thing that needs to be considered is ethics when it comes to the act of using people’s photographs for our personal purposes. Everyone has their own code of ethics. To me, asking for permissions before publishing images that directly affect ones’ image is crucial.
Arts Law Centre Australia 2016, Street Photographer’s Rights, Arts Law Centre Australia, viewed 2 September 2017, <https://www.artslaw.com.au/images/uploads/Street_photographers_rights_2016.pdf>.
Vietnam Ministry of Justice 2017, Discuss the Rights of Individuals to the Image in accordance with current legislations and recommendations, Ministry of Justice, viewed 2 September 2017, <http://moj.gov.vn/qt/tintuc/Pages/nghien-cuu-trao-doi.aspx?ItemID=2164>.