Photographing and Filming Tenants’ Possessions for Advertising Purposes: Report
Executive summary
This report examines the law relating to photographs and videos of tenants’ possessions that are used to advertise properties for sale or lease.
Right to enter
Under the Residential Tenancies Act 1997 (Vic) (RTA), a landlord or agent may enter a rental property at any time with tenant consent, provided they enter within seven days of obtaining consent.[1] Evidence provided to the Commission suggests that landlords and agents often ask tenants for permission before entering to take advertising images of tenants’ possessions.
However, the Commission has also been told of a number of cases in which advertising images of tenants’ possessions have been taken or used without tenant consent, causing distress and harm to the tenants involved. The central question in these situations is whether landlords and agents have a right to enter to take advertising images of tenants’ possessions without first obtaining the tenants’ consent.
The RTA lists several grounds upon which landlords and agents may enter a rental property without tenant consent.[2] Taking advertising images is not specifically listed as a ground for entry. In this report, the Commission reviews this section of the Act, before reaching the conclusion that these grounds do not establish a right of entry to take advertising images. It follows that entry for this purpose without tenant consent is unlawful.
The Commission also considers whether the law sufficiently protects the right of landlords to sell their properties while addressing the legitimate concerns of tenants in relation to the taking and use of advertising images that show tenants’ possessions. The Commission is of the opinion that it does not. Accordingly, it recommends establishing a right of entry for landlords and agents that is subject to the legitimate concerns of tenants. These concerns relate to possessions that identify the tenant, reveal sensitive information about the tenant or place the tenant at risk of theft or personal harm.
Right to use
The Commission was told that tenants have concerns about advertising images of their possessions being re-used years after they were taken, as well as images that were taken for other purposes being used in advertising material. In both of these instances, the Commission recommends placing an obligation on landlords and agents to obtain the tenants’ written consent before using the images.
Notice of entry
When a landlord or agent enters upon one of the grounds listed in the RTA, they must give the tenant 24 hours notice in writing.[3] In this report, the Commission reviews stakeholder feedback on the notice of entry provisions in the RTA. It then recommends ways to enhance communication among the parties involved if entering to take advertising images were included in the RTA’s grounds for entry. These recommendations include extending the notice period to seven days, requiring additional information in the notice of entry and permitting the delivery of notices via electronic communication.
Quiet enjoyment
The RTA states that landlords must take reasonable steps to ensure the tenant has quiet enjoyment of the rental property.[4] The common law right to quiet enjoyment prohibits landlords and agents from substantially interfering with the tenant’s right to possess the property and enjoy it for all usual purposes.[5] The Commission concludes that the right to quiet enjoyment would not ordinarily assist tenants with concerns about advertising images, a finding that makes the Commission’s recommendations all the more important.
Underlying many of the concerns of tenants, landlords and agents is the fundamental role online advertising now plays in selling and leasing a property. The very exposure that enhances the capacity of owners to sell and lease their properties leaves many tenants feeling vulnerable. The Commission’s recommendations strike a balance between the needs of landlords and agents on the one hand, and the needs of tenants on the other.