An interesting question from an RFS volunteer:

I’m a volunteer with the NSW RFS and also an avid photographer. During the recent fires I got some impressive shots while on duty and in uniform that were instant hits with the news agencies. AAP offered to pay me for the photos but I was advised by our fire control officer that accepting payment for the photos would be illegal and the ICAC could come down on me. Are you able to advise if this is the case, and if you have the time, elaborate on the point a little? 🙂

That’s a surprisingly complex question and the answer will take me to areas that I claim no expertise in, but I’ll see what I can do. I also note that the issue of taking photos by emergency service personnel has been raised before and is quite controversial in the USA – see “US legislation on taking photos at emergency scenes” 24 August 2012; and “The use of photos taken at accident and emergency scenes” 6 August 2011.

The first issue is to identify who owns the photo. A person who creates a work, like a photo, owns it (assuming a photo is ‘artistic work’ (Copyright Act 1968 (Cth) s 35(1)). The exception to this rule is that if you produce the work as part of your employment, so if you were employed by the RFS as a photographer, then the employer owns the copyright in the photo (s 35(6)).

Copyright is a form of property (what we lawyers call ‘intellectual property’). The copyright in an artistic work allows the owner to reproduce it, publish it or communicate the work (s 31(1)(b)). Because it is a form of property, the copyright owner can sell it and that is the point of the above question. What AAP want to do is buy the copyright.

The Rural Fire Service Service Standard 1.1.19 on Intellectual Property says at [2.9] “Any IP made or created by an RFS volunteer in carrying out their role or service as an RFS volunteer will vest upon its creation in the State.” It is not clear whether taking a photo while volunteering as a fire fighter is creating IP whilst carrying out the volunteer’s role or service. The RFS would create substantial IP and much would be contributed by volunteers eg when developing training materials, writing press releases, perhaps creating new inventions of fire fighting equipment. As they do that with the RFS, perhaps they have volunteered to be part of a working group on some new idea, then they are creating the IP for the RFS and the RFS owns it. Someone who has volunteered to be the RFS photographer rather than a fire fighter is also creating photos in their ‘role or service’. It is not so clear for a fire fighter. I’m sure many RFS volunteers would be unwilling to accept that any photo they took whilst they were in uniform was owned by the RFS – eg taking a photo of their own kids in a fire truck at the school fete?

So, the short, first part of the answer is if you took the photo, and it was not done as part of your employment (and I also assume you weren’t acting as a volunteer photographer for the RFS) then I think you own the photo and you would think you could sell it for whatever you can get for it. Even without the complexity of the IP Service Standard, I don’t think the answer is that simple, as there are far more issues involved.

The next thing to consider is does the RFS have a photo policy? A quick search of the RFS Service, Standards and Policies does not reveal one, but it may exist. The State Rescue Policy has a photographic policy. That policy says:

Members of accredited rescue units are to comply with the directions of this policy in relation to the taking of photographic images or film at a rescue incident.

That is of no application to RFS volunteers who are responding to a fire or even if they are responding to a motor vehicle accident to provide fire protection. They are not ‘members of accredited rescue units’ but the point I wish to make is if there is such a policy it should be adhered to. The photographer may be able to sell the photo, but if taking the photo is contrary to service policy, the member could expect to face disciplinary action which could, in extreme cases, include exclusion from the service (Rural Fires Regulations 2013 (NSW) Part 2, in particular ss 7 and 9).

There are other issues relating to taking photos and that depends on what is photographed and where. There is ‘no property in a spectacle’ which means you can photograph anything that is happening in public view. In Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479, Taylor built a tower on his property so he could see over the fence into the race course run by Victoria Park Racing & Recreation Grounds. A person stood on the tower and reported on the races to Sydney radio station 2UW. The plaintiff race-course owner wanted an order to stop the practice in order to encourage people to come to, and pay to enter, the race course. In the High Court of Australia, Latham CJ said

I am unable to see that any right of the plaintiff has been violated or any wrong done to him. Any person is entitled to look over the plaintiff’s fences and to see what goes on in the plaintiff’s land. If the plaintiff desires to prevent this, the plaintiff can erect a higher fence. … The defendant does no wrong to the plaintiff by looking at what takes place on the plaintiff’s land. Further, he does no wrong to the plaintiff by describing to other persons, to as wide an audience as he can obtain, what takes place on the plaintiff’s ground. The court has not been referred to any principle of law which prevents any man from describing anything which he sees anywhere if he does not make defamatory statements, infringe the law as to offensive language, &c., break a contract, or wrongfully reveal confidential information. The defendants did not infringe the law in any of these respects.

The shorthand from that case is that ‘there is no property in a spectacle’ so if you can see it you can report it or photograph it (subject to any express law to the contrary). This principle caused Channel Nine some problems when they sought the exclusive rights to broadcast the 1999 Sydney News Year Eve Fireworks (see Nine Network Australia Pty Ltd v Australian Broadcasting Corp [1999] FCA 1864). Of course Channel Nine could not stop the ABC broadcasting what was happening around Sydney Harbour.

What follows from this is that a person, whether a fire fighter or not, can film and photograph what is going on at a fire. We have seen that during the current Sydney fires with no shortage of footage on TV and the Internet from people near the fires and video and photos taken by fire fighters. That right extends to any bystander at any event including a house fire or a rescue at a motor vehicle accident. For example, my own book, Emergency Law, has recently been published in its 4th edition. On the cover is a photo taken at a fatal accident. It’s an excellent photo showing a multi-agency response. A journalist in the course of his employment took the photo, so the copyright owner was the newspaper for which he worked. My publisher (the Federation Press) approached the newspaper for permission to use the photo. The photo is also well known as it was entered into, and was highly commended, in the Professional Category of the 2005 Emergency Management Volunteers in Action Photo Competition. We’ve used the photo, but the people in it were never asked if they consented to having their photo taken or its use in the newspaper, the competition or my book.

The members of the RFS may have the power to cordon off areas and exclude people (Rural Fires Act 1997 (NSW) s 22A). That section says:

An officer of a rural fire brigade … may cause to be removed any person, … the presence of whom … at or near a fire, incident or other emergency might, in the officer’s opinion, interfere with the work of any rural fire brigade or the exercise of any of the officer’s functions.

Merely taking photos is not interfering with the work of the Brigade. You may recall video from the 2013 Gay and Lesbian Mardi Gras that involved a confrontation between police and a young man and which was widely reported as an example of police brutality. During the filming a police officer is seen to direct the person shooting the video to stop filming which he, rightly, refuses to do. The response of the police to that issue, ie the right of the citizen to film the event is informative. Assistant Commissioner Mark Murdoch

… told a press conference an officer was wrong to order members of the public to stop filming and will be spoken to.
“It is contrary to our media policy,” he said.
“I would suggest that unfortunately, it shows a degree of naivety of the police involved who made those comments.
“We understand and accept, and in fact support the right of the community to film anyone in a public space. We do it ourselves as part of our operational duties.”
(Sean Rubinsztein-Dunlop ‘Police investigate Mardi Gras brutality claims’ ABC News Online, 6 Mar 2013).

It follows that as an RFS volunteer you can photograph that which you see just like anyone else; but it can become problematic. Assume for example that the public are being excluded from an area due to the risk posed by the fire. A fire fighter will be allowed to go in as they are meant to performing their duties as a fire fighter. If they stop to take a photo they may well get a photo that no journalist could get as the media, like everyone else, have been excluded for legitimate operational reasons. That would give the RFS volunteer/photographer an unfair advantage. (For more on the relationships between the media and the emergency services, see Michael Eburn, ‘Media Access to Emergencies – Command, Control or Co-ordination?’ (2010) 25(1) Australian Journal of Emergency Management 13-17).

We now need to return to the RFS Service Standards and Policies. The Code of Conduct and Ethics tells fire fighters to engage in ethical conduct. The Code tells you (at [2.1])

In discharging your responsibilities you should consider the following points: …
Do these outcomes raise a conflict of interest or lead to private gain at public expense?

Further , at [4.1]:

A conflict of interest arises if it is likely that a personal interest could conflict, or be reasonably seen to conflict, with the impartial performance of our official duties and the public interest.

And at [4.7]:

You should not use your position in the RFS for personal business benefit.

Finally at [7.5]

The RFS’ resources [and] equipment … must not be used in any circumstances, in relation to a second job or business.

You can see the potential. You are responding as part of the RFS, you may access areas that are out of bounds to others because you are in the RFS, if you get a private gain from selling the photo you have obtained that by using your position as an RFS volunteer. You have used your position for that gain and arguably their resources when you rode in on the RFS truck. If you took time off from your duties to take a photo you were putting your private interest above the RFS. Even worse if there was a perception that a cordon was established or media ‘moved on’ not for legitimate operational reasons but to allow an ‘avid’ RFS photographer to get the photo no-one else could get, but everyone wants.

As the code says [at 12.1]:

Breaches of this Code… may constitute a breach of discipline and may be actioned accordingly.”

Another issue arises for an RFS volunteer and that is privacy laws. Generally there is no right to privacy and no tort of ‘breach of privacy’ (ie you can’t sue someone for a breach of privacy – see Simpson’s Solicitors, No Privacy Tort For Australia… Yet, 21 March 2013) but there are state and federal privacy laws. These laws relate to government agencies and how they collect, store and use private data (see Privacy and Personal Information Protection Act 1988 (NSW) and Privacy Act 1988 (Cth)).

Under the NSW law, personal information “information … about an individual whose identity is apparent or can reasonably be ascertained …” (Privacy and Personal Information Protection Act 1988 (NSW) s 4). Let us assume that can include a photo – if you have taken a photo of a person that is not usually covered by privacy law if done in a personal capacity (see Australian Government, Office of the Australian Information Commissioner, “Photos and Surveillance” (accessed 26 October 2013)). But if you’re an RFS volunteer, and you have access to personal information in that capacity, say you take a photo of fire that shows a person, or their home which can be used to identify them, then it may be argued that this has been collected by a ‘public sector agency’ in which case the relevant privacy laws would apply which would impact on how the information can be used, stored etc. If that did apply that would certainly stop you being able to sell the photo, but it would not apply if the photo had no ‘personal information’ ie it was a photo of a fire on public land.

As for the allegation of corruption, a public official includes who is a member of a public authority, which would include the RFS (Independent Commission Against Corruption Act 1988 (NSW) s 3) and a volunteer is a member of the RFS (Rural Fires Act 1997 (NSW) s 8).

Corrupt conduct is defined in the Independent Commission Against Corruption Act 1988 (NSW) s 8(1), as, amongst other things:

(a) any conduct … that adversely affects … the honest or impartial exercise of official functions … or …
(c) any conduct of a public official or former public official that constitutes or involves a breach of public trust, or
(d) any conduct of a public official … that involves the misuse of information or material that he or she has acquired in the course of his or her official functions, whether or not for his or her benefit or for the benefit of any other person.

Merely selling the photo would not be corrupt. But if (as discussed when talking about cordoning off areas to exclude the media) you had exercised your authority in order to advance your own position, or somehow abused the trust of the public (for example if the public allowed you access to an area where say, people were dead or injured because you are a firefighter and you started taking photos for private gain) or you take great photos for post event learning but sell them; then that may be corrupt.

I do think, however, that’s drawing a long bow and is far removed from the original fact situation and, further, the ICAC has far more important issues to consider and is not going to be interested in pursuing a volunteer fire fighter – so in some extreme circumstances there could be corrupt conduct, but I doubt it. Selling the photo would not however be corrupt conduct.

We are now at the stage that we can conclude as follows:

1. There is no right to privacy and no property in a spectacle; you can photograph what you can see (subject to specific laws about indecency, filming for sexual gratification and child porn etc, all of which I assume don’t apply in the circumstances).

2. The person who takes the photo owns the photo and can sell the rights to the photo, unless they took the photo in the course of their employment (and perhaps, also, if that was part of their volunteer duties).

3. If the photo was taken in circumstances that could be seen as giving rise to a conflict of interest between your private interests, the RFS and the public service, taking the photo, and more importantly selling it for profit, may be a breach of the RFS Code of Conduct.

4. If the photo contained personal information and was taken by a member of the emergency services in circumstances where they only got to be there because of their work, then it could be argued that it was collected by a public sector agency and the privacy laws would apply.

5. In extreme circumstances where you abused your office and powers to make sure you had an advantage in taking a photo; that could be corrupt conduct. Merely selling the photo is not and even if it was, it’s hardly the stuff ICAC inquiries are made of.

I hope that helps.

Michael Eburn
26 October 2013.