Privacy and the taking or use of images or photographs of people at RMIT instruction

Instruction statement

There are many reasons why you may want to use images of people to illustrate advertisements, reports, promotional documents or videos etc. In a published photograph, it is important to recognise the important values of respect for privacy and reputation. Pictures used thoughtlessly can depict people in a false light or humiliate them.

Privacy law in Australia protects images of identifiable individuals as well as written documents and some simple guidance points are listed below to assist you in protecting the privacy of the subjects of your images or photographs.

It is particularly important that images of children should be treated with special care and additional guidance is provided in this respect.

Exclusions

Nil.

Instruction steps and actions

1. Planning checklist

Where an image of an identifiable individual is being considered for use, applying the following checklist can help to ensure that privacy is respected. If the answer to any question is ‘yes’ then consent should be obtained before taking or using an image or photograph.

  • Is the person easily identifiable and still living?
  • Is the location in a private place, or semi-public place where the subject(s) would have reasonable expectation of privacy?
  • Where is the context? Does the picture show people at a party where they may have had a few drinks or be behaving less formally than usual? Does it show the person is some state of distress, e.g. on the ground after an accident?
  • Do any special factors apply? Does the person have a sensitive job that might mean the security of the person or family might be at risk if the image is used in a way that is being considered?
  • Are cultural factors relevant? E.g. in taking pictures in certain settings or publishing images of certain persons, such as recently deceased Aboriginal person?
  • Will the image be published in digital form? Digital images can be more easily manipulated that images printed in paper form only.

How widely will the images be made available? E.g. will it be published on the internet, on a secure intranet, on CD only, or in a paper format of limiting distribution? Posting a photograph on the internet raised issues that other forms of publication avoid and requires consent.

2. Are any children easily identifiable?

If children are easily identifiable in a photograph or image, these should be treated with special care and parental/guardian consent obtained prior to use.

3. Will the image in the particular setting or use be embarrassing?

What is the proposed use? Will the image appear in a satirical setting? Will the image illustrate a brochure or article about a topic that might make the association or the words with the image discreditable or embarrassing for those in the image? E.g. is the article about child abuse, domestic abuse, environmental damage or the dangers of unhealthy eating?

Where the possibility of embarrassment or reputation damage exists, always seek clear and informed consent from the individual concerned, and don’t publish in this context if that consent is withheld.

4. Obtaining consent

If a person is identifiable in a photograph, the ideal approach in all cases is to obtain the informed and voluntary consent of the people in the pictures. But that is not always possible, especially where a picture is part of an archive or was not taken directly by the organisation that plans to use it. It is often possible to give notice to people attending an event that photos will be taken for specific purposes. Giving notice shows respect.

If a person expressly requests that their image is not to be published, organisations should not do so unless it is required or allowed by law.

Consent can be obtained by completing the Consent to Collect and Disclose Personal Information (Photographs & Images of People) Form (DOC 242KB) (Consent Form).

Note: the consent form is used for taking photographs of people only. If you are wishing to take photograph or students works, and/or students and their course/completed project works, a separate consent form is required. See the copyright section for further details.

5. Obtaining consent when taking photographs of children

You must get consent from the parents, guardian or carer of any child or young person up to the age of 18.

Parental consent may be difficult to obtain in the case of young adult aged approximately 16 or 17. Privacy laws do not set an age where an individual can provide consent, however they do provide guidance. A person can provide consent if they have intellectual capability and maturity to understand the consequence of providing their consent. In this circumstance, decisions may be needed on a case to case basis, where considered appropriate, of consent by the young adult themselves.

If two parents disagree over consent for their children to appear in photograph or a video recording then this should be treated as if consent has not been given.

If the parents consent but the child does not, then this should be treated as if consent had not been given.

Children also have their own right to choose privacy.

You should especially be sensitive in the case of children with special educational needs.

If you need to get consent for children, you should send a consent form to the parents via the head teacher/centre manager at the child’s schools/clubs/centre. Remember to allow plenty of time for this, so that you can get permission to take the photographs.

6. Do I need to obtain consent to take or use photographs of staff?

Yes, staff have the same privacy as any other individual. If a staff member refused consent, do not attempt to coerce them into changing their mind. Do not take or use the photograph.

7. How long does consent last?

It is not reasonable to expect that consent lasts forever. It is recommended that images should not be used for longer than 5 years after the date on the consent form, unless further consent is agreed. This is particularly important if the publication will have a high profile or wide circulation, or via the internet.

8. Register of photograph and consent

It is recommended that a record of photographs and associated consent forms (with applicable dates) be maintained to ensure that consent has been received for a particular use, and that use does not continue for an unreasonable period of time.

9. Photographs taken at public events

If it is impracticable to get individual consent because the photographs are being taken in a public place, can you answer yes to the following questions?

  • Would people attending the event expect photographs to be taken?
  • Would people in the photograph consider themselves to be in a public place and not have reasonable expectation of privacy?
  • Do you think it’s unlikely that anyone would object to the photograph being taken? (An individual could be in a public place, but may not want any images in which they are present being used)

Where possible, place notices in prominent places (e.g. put a notice on the screen before the start of a public lecture); or provide business cards advertising that photographs are being taken and provide details of how to contact the photographer to advise if there are any concerns about privacy.

Sample wording for a notice or business cards could include:

A member of (insert the business unit name) will be taking photographs and/or videoing the event. Your image may be used in RMIT University printed and electronic publications for promotional and educational purposes, and may be made available to the media and other third parties, or published on the internet. If you have concerns about your image being used for the purposes, please contact (insert contact details).

Some public places (e.g. leisure and swimming pools) may have rules about taking photographs. Always check and adhere to any such rules in place.

10. Can I use existing photographs?

You may use photographs on file, or may use photograph from other areas within RMIT, e.g. Marketing and Communications or the RMIT Copyright Management Service. If consent has expired and you wish to reuse a photograph, you must renew consent. You cannot use the photograph otherwise.

If you never had consent you should use an alternate photo if possible. Photographs without consent for use should be disposed of in accordance with RMIT Archives’ destruction processes.

11. Commissioning photographs

Any agreement with a photographer should follow the guidance above on using images of people. This means that the photographer should:

  • Agree to take appropriate measures to prevent unauthorised or unlawful processing of personal data; and against unauthorised access, loss or damage to personal information (including photographs)
  • Comply with the requirements set out in the Privacy and Data Protection Act;
  • Use a secure storage area if storing photos electronically.

Commissioned photographers should either use your consent form or have their own system of recording consent in place. Wherever possible, an RMIT University photographer should be used.

12. Can I use photographs from an agency or third party?

If you get photographs from an agency or third party, you should ask them to guarantee that permission has been granted. You should also tell the agency or third party how you will use the photographs.

However, it is your responsibility to ensure that the agency or third party got permission from the people in the photographs and it is recommended that this should be confirmed in writing by the agency or third party.

13. What about copyright?

Copyright applies to photographs and generally the photographer is the copyright holder of the photograph. Copyright also exists with regard to the use of video recordings of public lectures and you should use the relevant RMIT Permission Form for the purpose of obtaining relevant authorisations.

If you intend to take photographs of student works (works that have been created as part of their course, as a student at RMIT) consent is required and the relevant RMIT Permission Form should be used for this purpose.

Further advice on copyright issues can be obtained from the RMIT Copyright Management Service.

14. What if the media asks for a copy of the photograph?

Media are exempt from the Commonwealth Privacy Act for acts undertaken in the course of journalism. However, RMIT University is not automatically exempt from Victoria’s Privacy law just because the media may be the recipient and user of the images.
The ideal approach is to obtain the informed and voluntary consent of the people in the pictures.

15. What about the Surveillance Devices Act?

Where is the image located? Is it a place where a person would have reasonable expectation of privacy like inside their own home or a workplace environment?

Under the Surveillance Devices Act some filming and publication of private activities is prohibited, unless done with consent.

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