This week The Herald Sun reported how parents had vigorously protested against a Victorian primary school that had banned them from taking photos at school events, which included images of children other than their own.

Parents claim that they were made to feel like criminals when an announcement was made half way through the ‘hat parade’ that they could not film or photograph the students.  Some parents also claim to have been evicted from a school disco the night before whilst trying to photograph their own children. The Principal of the school denied this claim.

From a governance, risk and compliance perspective, this raises some interesting questions, which we will take you through.

Background

First, a bit of context.  The school involved was a government school.  A Department of Education and Early Childhood Development spokesman said that schools developed their own policies around photographing students in consultation with their communities.

We had a quick look at the school’s website but could not locate the actual policy, nor could we locate a social media policy or a privacy policy. However, according to the report, the school’s filming and photography policy stated that parents could photograph their own children, but not other people’s children, and no images should be taken or uploaded to the internet by anyone other than a teacher or authorised adult.

It appears that the risk the policy attempts to address primarily relates to the potential for an abusive parent, or internet predator, to use these online photos to identify the student, and locate and harm them. Another potential risk relates to misuse of the images.  

Can these policies be enforced?

From a compliance perspective there are no specific laws preventing people from taking photos of children in public spaces, as long as the images are not indecent, being used for voyeurism, protected by a court order, defamatory or intended for commercial purposes.  

However, where an event is held on private property, privately owned land, or school or council owned facilities, the owners of private property or venues are able to restrict or ban photography. There is nothing, however, to prevent a person from photographing outside the property boundary unless it is taken for indecent purposes.

So, schools can make their own rules to address the risks that they perceive exist. The real issue however comes down to how best to apply these rules to achieve desired outcomes.

Practical Considerations

There is an immediate problem with the policy in question.  The school Principal said parents ‘can photograph your own children, just not other people’s children’.  We don’t see how this would be practical. Where there are mobile devices, telephoto lenses and crowds of children, it goes without saying that it would nearly be impossible to take a photo or video without capturing images of other children.  How could a school practically enforce such a policy without completely banning the use of image capturing devices?  The answer is that it could not. 

Such a policy will result in ambiguity as to what a parent can do, which can result in conflicts between members of the school community and reputational damage.  If you are really unlucky the conflicts can start to play out on social media and then come to the attention of the press as has happened in this case.

So how should these risks be addressed? 

The Australian Sports Commission, which is obviously used to dealing with such issues on behalf of sporting clubs, provides some useful guidelines[PF1] . Whilst these guidelines are not the be all and end all, the implementation of the following strategies could be adapted for schools:

Acquiring Images

• Clearly outline what is considered appropriate behaviour in obtaining photographs and what is considered appropriate image content using a camera, mobile phone or video and publicise this information throughout the school community.
• Do not allow photographers (professional photographers, spectators, fans, coaches or members of the media) unsupervised or individual access to children.
• Ensure the coach informs the team/athlete and parent(s) if the coach wants to video the athlete(s) as a tool to analyse and improve performance. (This practice would need to consider any photographing policy in existence for the sport and if on private property)
• Obtain the consent of parents/guardians and their agreement to be present before approving photo/video sessions outside the event venue or at the home of a child. Where possible, have the photo taken at the event venue.
• Provide details of who to contact within the club or organisation if concerns or complaints of inappropriate photographic behaviour or content are raised. Ensure that the contact person understands the application of relevant legislation and policies.
•  Provide members of the media and professional photographers with an identification pass to be worn for the duration of major/large events.

Displaying images

It is not so much the taking of images that may be of concern, but how the image will be used. If your organisation is acquiring or taking an image of a child for display:

• Consider using models or illustrations for promotional / advertising purposes.
• Obtain permission from the child’s parent/guardian prior to taking the images of a child or young person for commercial purposes. Ensure that all concerned are aware of the way in which the image is to be used and how long the image will be displayed.
• If an image is used, avoid naming the child. If this is not possible, avoid using both a first name and surname.
• Avoid displaying personal information such as residential address, email address or telephone numbers if images are being posted on websites or distributed in publications.
• Do not display information about hobbies, likes/dislikes, school, etc, as this information has the potential to be used as grooming tools by paedophiles or other persons.
• Only use appropriate images of the child, relevant to the sport or activity, and ensure that the athlete/child is suitably clothed. Images of athletes participating in sports or activities that involve minimal clothing (e.g. swimming and gymnastics) or unusual body positions/poses could potentially be misused. The age of the child is another factor to consider when deciding if the image is appropriate.
• Clearly outline in a written contract to photographers who are contracted or paid to take photos, who will retain the images taken, include arrangements made for negatives, digital file and proofs and outline any restrictions for use and sale.
• Provide details of who to contact and what to do if concerns or complaints of inappropriate image use are raised.

The bottom line

At the heart of these recommendations are education, consent and the clear communication of an organisation’s expectations, rather than heavy-handed enforcement tactics. The reality is that parents will take photos and the key is to educate them as to potential risks, so as to promote responsible behaviour in the distribution of these images (especially through social media).

As a side note - whilst ‘privacy’ is often given as a reason that parents can’t take photos, the new (as well as the old) privacy laws that commenced on 12 March 2014 and apply to non-government schools, do not cover individuals acting in their private capacity.