Photos and videos featuring real people are powerful marketing tools. Team shots on your website, customer testimonials on Instagram, or behind‑the‑scenes content can help build trust and drive sales.
But there’s a common worry: can you be sued for using someone’s picture without permission in Australia?
The short answer is “it depends” - and it’s not always illegal. Australia doesn’t have a general “image right,” and you won’t always need consent. However, using someone’s photo can trigger risks under copyright, the Australian Consumer Law, defamation, privacy and contract law.
This guide explains when you do (and don’t) need permission, the legal risks to watch, and practical steps to use images safely. If you’re after a deeper dive into the rules around taking and sharing images, our overview of photography consent laws in Australia is also helpful.
Do You Need Permission To Use Someone’s Photo?
There’s no single law that says you must always get permission. Whether you need consent depends on how the image was taken, who took it, how you plan to use it, and which laws are engaged.
Key scenarios
- Internal updates vs public marketing: Internal newsletters or staff updates carry lower risk than public advertising campaigns. Once you use an image to promote your business publicly, the risk profile changes.
- Editorial vs promotional use: An image in a factual blog post about an event is different to using the same image on a landing page with a “Book now” call to action. Promotional use is more likely to imply endorsement and attract scrutiny.
- Public space vs private setting: Taking photos in public is generally lawful, but commercial use can still be risky if it misleads consumers, infringes copyright or harms someone’s reputation.
Common misconceptions to clear up
- Privacy law doesn’t always require consent: In Australia, many small businesses fall under the “small business exemption” to the Privacy Act (generally under $3m annual turnover). Even so, collecting identifiable images can still create expectations and obligations, and other laws still apply. If your business is covered by the Privacy Act (for example, larger organisations, health service providers, or businesses that trade in personal information), you’ll need to handle images as personal information, and you’ll often address this in a Privacy Policy and a suitable collection notice.
- Employee photos and privacy: For private sector organisations covered by the Privacy Act, the “employee records exemption” can apply to current and former employees’ records when directly related to the employment relationship. It does not cover job applicants or contractors, and it doesn’t override other laws like the Australian Consumer Law or defamation.
- Copyright ownership is separate to consent: Consent from the person in the photo is different to permission from the copyright owner (usually the photographer). You may need one, or both, depending on the situation.
Best practice is simple: if you plan to use someone’s image in any marketing or promotional context, get written consent. It’s the clearest way to manage risk, maintain trust, and avoid disputes.
When Could You Be Sued For Using Someone’s Picture Without Permission?
While there’s no automatic lawsuit just because you posted a photo, there are well‑known pathways to claims. These are the main ways businesses get into trouble.
1) Misleading or deceptive conduct (endorsement risk)
Under section 18 of the Australian Consumer Law (ACL), businesses must not engage in misleading or deceptive conduct. Using someone’s image in advertising can imply they’re your customer, achieved those results, or endorse your brand. If that’s not true, it can be a problem. This is the legal route most commonly used for “implied endorsement” issues, alongside false or misleading testimonials. For more context on this standard, see our guide to section 18 of the ACL.
2) Defamation and reputation harm
If an image, its caption, or the surrounding context harms a person’s reputation by conveying a false (defamatory) meaning, they may have a claim. This can happen even with a genuine photo if the way you use it suggests something untrue or damaging.
3) Copyright infringement
Copyright in a photograph generally belongs to its creator.
- Employee‑created photos: If a photo is taken by an employee in the course of their employment, the employer usually owns the copyright by default, unless agreed otherwise.
- Contractor/freelancer photos: If a contractor or freelancer took the photo, they usually own the copyright unless you have a written IP assignment or licence that grants your business the right to use it commercially.
If you use an image without the copyright owner’s permission, they can require you to stop and potentially seek damages or a licence fee.
“Passing off” is a common law action that protects a trader’s goodwill against misrepresentations (for example, suggesting a connection with a competitor). It’s typically used by businesses, not individuals, but it can overlap with ACL claims about misleading impressions. Individuals concerned about personal endorsement usually rely on the ACL and defamation rather than “passing off”.
5) Sensitive contexts and vulnerable people
Images involving children, people receiving health or disability services, or other sensitive contexts demand extra care. Consent must be clear, informed and from the right person (for minors, a parent or guardian). In some industries, additional rules or professional standards apply.
Red flags to avoid
- “Happy customer” photos where the person is not a customer or didn’t consent to that claim.
- Before‑and‑after images that exaggerate results or omit important disclaimers.
- Event photos posted publicly without a clear notice that images may be used for marketing.
- Using a freelancer’s image without a written licence or assignment.
- Repurposing staff headshots for advertising when consent was only given for internal use.
How To Use Photos Of People Safely (And Confidently)
With simple systems, you can keep your marketing agile and compliant.
Use a straightforward Talent Release Form that sets out:
- Who is giving consent, and for which images/footage.
- How the images can be used (website, social media, print, ads, worldwide, time period).
- Whether edits, cropping and composites are allowed.
- How withdrawal will be handled (for example, future use stops, but existing materials may remain).
If your campaigns move quickly, a template release that can be signed digitally will save you time.
2) Be accurate with captions, claims and testimonials
Check that any claim attached to an image is true and not likely to mislead. If you’re using testimonials, keep records showing the person genuinely used your product or service and approved the wording. The same standard applies across email, web and social channels, consistent with the ACL.
3) Clarify ownership and usage rights with photographers
Get your rights in writing early. For employees, your employment documents can state that works created in the course of employment are owned by the business. For contractors, include a clear licence or an IP assignment so you can use the content commercially without surprise restrictions.
4) Use privacy notices and policies appropriately
If your business is covered by the Privacy Act, make sure your Privacy Policy and any collection notice explain that you collect images (as personal information), the purposes for that collection (including marketing if applicable), and how people can contact you. If you’re a small business that’s exempt, this is still a good transparency practice that supports trust and reduces complaints.
5) Set expectations at events and on premises
For events, use clear signage and registration wording that images may be taken and used for marketing. Offer practical opt‑out mechanisms (like a different lanyard colour or a “no photos” sticker) and respect them.
6) Handle vulnerable groups with extra care
For minors, obtain a parent or guardian’s consent, be specific about uses, and avoid identifying details where possible. In regulated sectors (for example, health), check your professional and industry rules before publishing imagery.
7) Stock photos aren’t “set and forget”
Licensed stock imagery is a safe option, but read the licence to confirm commercial use and whether a model release is included. Don’t pull “random” images from Google - that almost always infringes copyright and can still create endorsement or defamation risks.
Which Australian Laws Apply To Using People’s Images?
Here’s a practical overview of the main legal areas that may be engaged.
Australian Consumer Law (ACL)
- Misleading or deceptive conduct: Images that imply endorsement, results or associations can breach the ACL if they create a false impression. See section 18 for the general standard.
- Testimonials and reviews: Keep evidence that testimonials are genuine. Avoid selective editing that changes the meaning.
Copyright Act 1968 (Cth)
- Ownership: The photographer is typically the first owner of copyright. Employers usually own employee‑created photos taken in the course of employment; contractors retain ownership unless there’s a written licence or assignment.
- Licences/assignments: Use written terms to secure rights for commercial use. An IP assignment or licence prevents disputes and takedown demands.
Privacy Act 1988 (Cth) and the Australian Privacy Principles (APPs)
- When it applies: Many small businesses are exempt, but there are important exceptions (for example, health service providers; businesses that trade in personal information; certain government contractors; related bodies corporate).
- Personal information: Identifiable photos are personal information. If the APPs apply to you, be upfront about collection and use, and consider whether consent is required for particular marketing uses.
- Employee records exemption: Limited to current and former employees and only for records directly related to the employment relationship. It doesn’t cover job applicants or contractors.
Defamation
- Even a truthful photo can defame if the overall impression (headlines, captions, placement) suggests something defamatory. Avoid juxtaposing images with controversial content that could imply wrongdoing.
Passing off
- This protects businesses from misrepresentations that damage their goodwill (for example, implying your product is connected with a competitor). While individuals typically rely on the ACL or defamation for image misuse, passing off may be relevant if another trader’s brand is implicated.
Other considerations
- Contracts and workplace policies: Make sure your employment and contractor agreements deal with image use and IP ownership. Clear internal policies reduce confusion, especially for recurring shoots.
- Platform terms: Social media and ad platforms have their own rules about claims, endorsements and rights. Non‑compliance can lead to content removal or account issues.
What Legal Documents Help You Use Images Lawfully?
You won’t need every document below, but most businesses benefit from a few of these essentials.
- Talent Release Form: Written consent from the person featured for specific or broad promotional uses, ideally with digital sign‑off. Start with a practical Talent Release Form template tailored to your campaigns.
- Photographer Agreement + Licence/Assignment: If you work with contractors or freelancers, secure a commercial licence or an IP assignment so you can use, edit and repurpose images across channels.
- Privacy Policy: If the APPs apply to you (or you choose to implement best practice), explain how you collect and use images and other personal information in your Privacy Policy.
- Privacy Collection Notice: Where appropriate (for example, event registrations or forms that ask for image uploads), include a clear collection notice that mentions intended marketing use.
- Website Terms and Conditions: If your site allows user‑generated content or photo uploads (competitions, reviews), set the rules and a licence to display content in your Website Terms and Conditions.
- Internal Policies: A short playbook for staff that covers consent processes, model releases, storage, naming conventions and takedown procedures will save headaches later.
What If Someone Complains About Their Image?
Most image complaints can be resolved quickly if you act promptly and respectfully.
- Respond fast: Acknowledge the concern and open a channel to resolve it.
- Take it down (temporarily) while you assess: Removing the post or ad can defuse tensions and limit exposure.
- Check your paperwork: Locate the release, photographer licence/assignment and any relevant privacy notices. Confirm what was authorised.
- Fix the issue: If you used the image outside the scope of consent, apologise and confirm the removal or corrected use going forward.
- Escalate when needed: If a claim alleges defamation, copyright infringement or a serious ACL breach, seek advice. It’s often possible to resolve matters with a practical undertaking and clear communication.
As a preventative step, build a simple takedown workflow so your team knows who to notify and which systems to check (website, ads, social platforms, print deadlines).
Key Takeaways
- There’s no general “image right” in Australia, but using someone’s photo can still trigger liability under the ACL, defamation, copyright and (in some cases) privacy law.
- Consent isn’t always legally required, but written permission is best practice for any promotional use and is often essential to avoid misleading endorsement claims.
- Employee‑created photos are typically owned by the employer; contractors own their work unless your contract includes a commercial licence or IP assignment.
- If you’re covered by the Privacy Act, treat identifiable images as personal information and address collection and use in your Privacy Policy and collection notices.
- Put simple safeguards in place: a Talent Release Form, clear photographer terms, accurate captions and a quick takedown process.
- When in doubt, pause the post, check your rights and seek advice - fixing issues early is far cheaper than a dispute.
If you’d like a consultation about using photos of customers, staff or the public in your business, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no‑obligations chat.
