Can a restaurant stop diners from preferencing photos over food?
This lawyer says yes. PR and social media implications are left for someone else.
Diners are in the restaurant at the pleasure of the owner. If you don’t play by the owner’s rules, you can be kicked out.
Everyone who comes into a restaurant gets an implied licence to be in the restaurant. Without that licence, the diner will be trespassing. After all, the restaurant has an exclusive right to its space and, by its grace (and to get some money), it allows diners to be there.
The licence can be revoked at any time. In plain English, that means the owner can ask the diner to leave, and for any reason. The most likely way it gets revoked? The diner didn’t play by the rules.
That licence comes with rules. The kind that should go without saying. Behave, don’t creep into staff only areas and don’t hawk. Photos are normally OK. The licence also includes any terms which are written or told to diners.
If the restaurant says “no photos”, that becomes a term of that licence. Take photos, the restaurant can kick the photographer out.
The gorgeous and tiny Bar Americano in the Melbourne CBD has appropriately small signs requesting that guests not take photos. Bar di Stasio in St Kilda has them, too. They’re Instagram-free zones.
Once the photos are taken, though, that’s it. The restaurant can’t force the photographer to delete the photos already taken.
Should photos be banned? David Chang of the Momofuku empire explains why his restaurant, Ko, changed to allow photos.
This Small Plate is an extended analysis of whether bars and cafes can stop guests taking photos, briefly described in Richard Edwards’ article in the Daily Life section of The Australian on 12 April 2016.