Published by the Victorian Law Reform Commission The Victorian Law Reform Commission was established under the Victorian Law Reform Commission Act 2000 as a central agency for developing law reform in Victoria. © Victorian Law Reform Commission 2015. This work is protected by the laws of copyright. Except for any uses permitted under the Copyright Act 1968 (Cth) or equivalent overseas legislation, no part of this work may be reproduced, in any matter or in any medium, without the written permission of the publisher. All rights reserved. This publication of the Victorian Law Reform Commission follows the Melbourne University Law Review Association Inc, Australian Guide to Legal Citation (3rd ed., 2010). This report reflects the law as at 6 February 2015. National Library of Australia Cataloguing-in-Publication data Photographing and Filming Tenants’ Possessions for Advertising Purposes / Victorian Law Reform Commission ISBN 978-0-9925955-4-8 Series: Report (Victorian Law Reform Commission) 31 Subjects: Victoria. Residential Tenancies Act 1997. Landlord and tenant—Victoria. Advertising—Real estate Privacy, Right of—Victoria. Law reform—Victoria. Other Authors/Contributors: Victorian Law Reform Commission, issuing body. Dewey Number: 346.9450434 c h a i r The Hon. Philip Cummins AM* c o m m i s s i o n e r s Liana Buchanan Helen Fatouros Ian Freckelton QC Bruce Gardner PSM Dr Ian Hardingham QC His Honour David Jones AM Eamonn Moran PSM QC* Alison O’Brien* The Hon. Frank Vincent AO QC *Commissioners working on this reference c h i e f e x e c u t i v e o f f i c e r Merrin Mason p r o j e c t t e a m Eve Gallagher (community law reform manager) Si Qi Wen c o v e r d e s i g n Letterbox t e x t l ay o u t GH2 Design
Terms of reference [Matter initiated by the Commission pursuant to section 5(1)(b) of the Victorian Law Reform Commission Act 2000 (Vic) on 19 December 2013.] The Victorian Law Reform Commission will consider and review aspects of the Residential Tenancies Act 1997 (Vic) and other laws relevant to the practice of publishing photographs of residences which include tenants’ possessions when advertising rented properties for sale or lease. The Commission will: • Identify the practices that are commonly followed by landlords and landlords’ agents who photograph tenanted residential properties. • Examine the effect of the practices on tenant privacy, security and possessory rights, as well as the tenant’s ‘right to quiet enjoyment’ under the Residential Tenancies Act 1997 (Vic) (s 67). • Determine the source, scope and adequacy of the legal basis on which landlords and their agents rely when photographing and publishing images of tenants’ possessions. • Consider whether the current law provides adequate access for landlords and their agents for the purposes of advertising rented premises for sale or lease. • Consider whether the current avenues of dispute resolution available to tenants, landlords and landlords’ agents are sufficient and effective if disputes arise. The Commission will consider legislative developments in Australian and international jurisdictions, with a particular focus on Queensland and Tasmania.
12 Victorian Law Reform Commission, Photographing and Filming Tenants’ Possessions for Advertising Purposes, Consultation Paper No. 22 (2014). 13 Victorian Law Reform Commission, Photographing and Filming Tenants’ Possessions for Advertising Purposes: Submissions (23 December 2014) <>. 3
74 Residential Tenancy Amendment Act (Tas) s 26 inserting s 55A into the Residential Tenancy Act 1997 (Tas). 75 Consumer Affairs and Fair Trading Tasmania advises that changes to the provision relating to photographs, along with other minor changes, are currently being drafted: Consumer Affairs and Fair Trading Tasmania, Renting in Tasmania (9 October 2014) <>. 76 Ibid. 77 Consultation 16 (Real Estate Institute of Tasmania). 78 Consultations 23 (Queensland Residential Tenancies Authority); 34 (Real Estate Institute of Queensland). 29
29 Submission 10 (Real Estate Institute of Victoria). 30 Consultations 8 (a real estate agent); 17 (a real estate agent); 19 (Loretta Rossborough, learning and development coordinator, Little Real Estate). 31 VLRC online survey Q5. 41
33 Consultation 14 (Tenants’ Union of Tasmania). 34 Submission 1 (Tenants’ Union ACT). Consultation 14 (Tenants’ Union of Tasmania). 35 Submission 1 (Tenants’ Union ACT). 36 Consultation 23 (Queensland Residential Tenancies Authority). 49
7. Conclusion 7.1 The Residential Tenancies Act 1997 (Vic) does not explicitly address the practice of entering a property to take advertising images that show tenants’ possessions. While some hold the view that a right to enter for this purpose is implicit in the RTA, others— including the Commission—disagree, arguing that landlords and agents can only enter for this purpose after obtaining tenant consent. 7.2 The need for legislative reform is clear. The absence of an express provision on this issue has enabled a range of practices to emerge, some of which have caused tenants distress and harm. The law has failed to keep pace with technology, including online advertising, the advent of which largely explains the prevalence of tenants’ concerns about privacy, risk of theft and risk of personal harm. 7.3 The reforms put forward by the Commission are designed to bring the law into line with the digital age while striking the right balance between the interests of landlords and tenants in relation to advertising images. 7.4 If implemented, the reforms would provide certainty for landlords by establishing a right to enter to take advertising images, as this right is fundamental to their capacity to sell or lease a property. 7.5 The reforms would also strengthen protections for tenants who have legitimate concerns about images that identify or reveal sensitive information about them, or that place them at risk of theft. Tenants at risk of family or personal violence should also be afforded protection, and the Commission recommends granting these tenants a broad right of objection to images that would reveal their identity, and thus their location, to those who pose the risk. 7.6 In addition to the formal protection afforded by the reforms, the Commission hopes they would encourage landlords, agents and tenants to negotiate mutually agreeable outcomes that address the needs of all concerned.
Question 4 Have you ever prevented a landlord or real estate agent from taking or using images of your possessions for advertising purposes? No  Go to Q33 Yes  Go to Q10 If you have any comments, write them here. Question 5 Did you remove any valuable or personal items before the photographs or videos were taken? No, I wasn’t given the opportunity No, I didn’t feel the need to Yes Other If you have any comments, write them here. Question 6 (mandatory question) Did you have any concerns about the photographs or videos? (Select all that apply) No  Go to Q9 Yes, I was concerned about the notice that was provided by the landlord or real estate agent (eg. I did not receive enough notice) Yes, I was concerned about my personal possessions appearing in the photographs or videos (eg. the images contained valuable or identifying items) None of the above Other (please specify) Question 7 Did you tell the landlord or real estate agent about your concerns? (Only one answer) No  Go to Q9 Yes If you have any comments, write them here. Question 8 How did the landlord or real estate agent respond to your concerns? Not well Well Very well Other If you have any comments, write them here.
videos will be taken inside their homes? No Yes If yes, could you please elaborate on your response? Question 29 Do you advise tenants to remove any valuable or personal items before photographs or videos are taken? No Yes Question 30 (mandatory question) Do tenants have any concerns about the photographs or videos? (Select all that apply) No  Go to Q32 Yes, they have been concerned about the notice provided (eg. the tenant felt that they did not receive enough notice) Yes, they have been concerned about their personal possessions appearing in the photographs or videos (eg the images contained valuable or identifying items) Other If you have any comments, write them here. Question 31 How did you respond to the tenants’ concerns about the photographs or videos? Question 32 (mandatory question) To reduce or compensate for any inconvenience caused to the tenant while the owner was looking for a new tenant or buyer, did you offer to … (Select all that apply) Reduce the rent or provide compensation  Go to Q33 Only photograph or film rooms that did not contain personal possessions (eg bathroom)  Go to Q33 Hire furniture to use in the advertising photographs or videos  Go to Q33 Wait until the tenant had left the property to take the advertising photos or videos Go to Q33 None of the above  Go to Q33 I don’t know  Go to Q33 If you have any comments, write them here.