Curious case of a cat and an iPhone photo

The fur is flying in a strata battle over an illegal cat and a sneaky iPhone photo. It starts with a  Flat Chat reader who tells us she inherited an ageing cat from her mother who passed away recently.

Knowing that having pets was in breach of her building’s bylaws, but believing the ageing moggy would be of no danger or irritation to anyone, she smuggled Tiddles (not the cat’s real name) in under cover of darkness and thought that would be the end of it.

Then one day she was surprised to see an arm extended from the adjoining balcony holding a smartphone and pointing in the general direction of her mother’s cat as it snoozed in the sun.

A few days later, she received a Notice to Comply with pictures, clearly taken with the phone, attached as evidence of her by-law breach.

An avid viewer of The Good Wife, she claims this is inadmissible evidence as the phantom photographer was invading her privacy and any action based on the pictures would be “fruit of the poisoned tree”. What did we think?

Well, we agree that it’s an excellent show but an American courtroom drama does not provide a legal precedent in Australia.

Seriously, though, this is much more complicated than it seems. For a start, there is no absolute legal right to privacy under Australian law. According to this website , run by the Office of the Australian Information Commissioner, “the Privacy Act does not cover individuals acting in a personal capacity, such as a neighbour taking photos of you.”

Provided there are no illegal intentions behind their actions – e.g. you aren’t partially naked or involved in “private activity”  –  individuals are entitled to take photographs of anyone and anything they like, and pretty much anywhere for that matter.

According to this factsheet issued by Stacks lawyers, “There is no right to privacy that forbids you taking a person’s photo so long as you are standing on public property. You can even take a photo of someone in their house or backyard so long as you don’t step on their private property.”

However, as soon as that person is doing this on behalf of a company or a corporation, the rules change and there are a lot of restrictions on what they can or can’t do. And that’s where this gets interesting.

It could be argued that the iPhone spy was acting as a member of the Owners Corporation (which all owners are) when they took the picture and certainly when they sent it to the strata committee. So they probably had crossed at least one of the legal lines that might make this an invasion of privacy.

It’s a very grey area full of all sorts of nuanced regulations.  However, we’ve heard of another case where surreptitiously acquired photographs of an illegally installed air conditioning unit prompted a barrage of threats of legal action for invasion of privacy and claims of psychological trauma that had the strata committee backing off like a cat at bath time.

Back to the cat in question, we reckon – notwithstanding the fact that the it shouldn’t be there in the first place – a strongly-worded lawyer’s letter should buy Tiddles a little more time as part of her retirement plan.

And one other thing, while strata schemes are entitled to refuse to allow pets in the building, if the only evidence of a contraband cat is an intrusive photograph, you have to wonder how much trouble Tiddles was to anyone.

If a neighbour’s asthma was being triggered by an allergy to cats, it would be bye-bye moggie, no question.  Otherwise, we can think of a better place for the neighbour to stick his iPhone than over the balcony.