In a warning to parents, the NSW Department of Education has said that information published on public websites and social media can be “discoverable online for a number of years, if not permanently”, and has warned all government schools to comply with strict rules requiring consent before any student can be identified from a photograph or from information published in it. But many schools have said that this stance is too restrictive and it is better to simply apply "common sense" judgment in the case of photographs and videos of students which may be published online. So when should schools consider using a standard policy or a specific consent form? And is it enough simply to limit the taking of photographs and videos at school events?
The Law Surrounding Privacy for Student Images
Images of students in photographs or videos (collectively referred to as images in this article) are treated as personal information under the Privacy Act 1988 (Privacy Act) and the Australian Privacy Principles (APPs). Personal information includes information or an opinion about an identified individual or an individual who is reasonably identifiable whether the information is true or not, and whether the information is recorded in a material form or not. Sensitive information is a subset of personal information and includes any information or opinion about an individual’s racial or ethnic origin, political opinions, membership of a political association, religious beliefs or affiliations, philosophical beliefs, membership of a professional or trade association, membership of a trade union, sexual orientation or practices, or criminal record.
Images of students may contain personal information where the student's identity is clear or can reasonably be worked out from the image. Images of students may also contain sensitive information if, for example, the student’s racial or ethnic origin or religious beliefs are apparent. Under APP 3, a school can only collect images of identifiable individuals if it is reasonably necessary for one of the school’s functions or activities. Schools should comply with the APPs and the Privacy Act at all times as any breach of an APP in relation to personal information about an individual is an interference with the privacy of the individual. The Office of the Australian Information Commissioner (OAIC) has authority to investigate any breaches and impose enforcement, or other monetary, remedies.
Obtaining Consent or Permission for Collection or Use of Student Images
For schools to collect or use images, consent should be obtained if the image of the student records personal or sensitive information about the student AND the student is also reasonably identifiable. Generally, individuals are becoming increasingly concerned about images of themselves being collected and/or published, particularly on the web. It is good practice for schools to seek express parental or student consent in writing before collecting and/or using any images, after telling them, in as much detail as possible, about:
- who is taking the image and how they can be contacted
- how, when and from where the images are being taken
- if the collection of the images is required or authorised by law
- the purpose for the taking the image
- if there are any consequences for the student if their image isn't collected
- any other organisations or people with whom personal information might be shared
- how students can get access to an image later, and
- whether the school is likely to send the images overseas.
By meeting these requirements, schools are providing parents and students with the best opportunity to provide informed consent, regardless of whether the use and collection of the images will be for within the school or outside the school context.
The Privacy Act protects the personal information of both adults and children alike. Schools must use particular care in the handling of images and other personal information of their students. Depending on the age and ability of the child to understand the explanation about what is going to happen with their image and to make a truly informed choice, schools should also discuss consent for both collection and publication with their parent or guardian first. Schools should also be aware, and meet the requirements, of any other legislation that protects children including child protection or criminal legislation in their jurisdiction, for example, indecent or nude pictures or upskirting.
Images of students may also contain copyright material and therefore may also be governed by the Copyright Act 1968 (Cth) (Copyright Act). Schools should also consider copyright issues when using student images such as video recordings of student performances or pictures of student work. From the moment the student performance or student work is created, it is copyright protected, and the age of the creator doesn’t matter. However, as consent can only be offered by a student if they understand what they are consenting to and are making an informed choice, it is prudent to publish student work or videos of student performances only after both the student and their parents have given their consent to publish the work. Posting these images to a school website also counts as publishing under the Copyright Act. The copyright in student works or student performances always belongs to the student despite the images being available for viewing through a school's public website or other external materials.
Enrolment is often the time schools ask parents and students to sign an agreement that confirms whether the school can use information, including images of the student, in its publications or on the school website. Some schools also use a generic permission form to be signed at the start of each year for those subjects that require filming for the purposes of assessment. Students should always be able to easily opt out of having their photos used by the school.
Restrictions on Collection and Use of Student Images
The OAIC recommends in relation to privacy that schools not publish information that identifies or could reasonably identify a student, community member or any other individual unless the school has consent from that person. Information that reveals a person’s identity may include the person’s name, photograph, age, class, school or position title. Even when consent has been given, schools should err on the side of caution to ensure that the consent they have collected covers the required purpose.
It is not necessary for the student’s name or picture to be published to establish the student’s identity. It may be possible to establish identity by reference to extraneous information available to individuals receiving the published information. For example, a person who knows a student attends a particular school may be able to ascertain the particular student’s identity from publication of the student’s initials and class on the school website. Schools should be particularly careful in areas like child protection, ongoing litigation eg. family law or domestic violence disputes and witness protection schemes.
If the school uses a student's image for another purpose that they didn't tell the student about initially, they will also need to consider obtaining the student's consent first, unless the student and their parents would reasonably expect the school to use the student's image for this other purpose. It is always preferable to obtain written consent before publishing images of students, however in extreme circumstances, verbal consent may be enough if school record keeping procedures are adequate.
There are of course occasions where obtaining consent to use of an image may be impractical for a school. For example, it would be impractical to obtain consent for a general action shot at a sports carnival or in the playground; assuming the image depicts a large number of students and no student can reasonably be identified, it would not be considered to contain personal information. Similarly, if photos are being taken of students in public places, as long as the images aren't indecent (ie. photos where the students are nude or in a state of undress) and the students cannot be reasonably identified, consent is not needed.
What your School Really Needs to do to Photograph and Film your Students
In general student images are used to:
- record student participation at school and in school events
- celebrate student effort and achievement, and
- promote the school and events held by the school.
These uses are a vital part of a school environment and the Privacy Act does not dramatically change these activities. However, these normal uses of student images within a school also require different levels of consent at different points in the student's interaction with the school.
Given the different modes of records management used within schools and increased concern over the widespread availability of student images, schools should take the following steps for the most effective implementation of a common sense response to filming and photographing students.
- Notify parents and students of the current practices when using student images. This can involve using a general consent form on enrolment for permission to use student images for school purposes only but not on public facing websites or in the media.
- Develop a policy in relation to the use of student images. This policy should include consultation with parents and guardians, apply to all images (including videos and images published on the internet through the school website or social media), and be based on the consent of the student or parent/guardian.
- Treat consent as an active process. Schools should review and update their policies in relation to consent often and not rely on the silence of students to imply that they agree with a particular activity.
- Avoid bundled consent (generally bundling unrelated consents together) and forced consent (where there is a suggestion that the student’s ability to attend school (or school activities such as sporting events, theatre productions or fundraising events) is contingent on the consent being provided). Both these approaches make the consent invalid and also make it more difficult for students or parents and guardians to easily withdraw their consent to certain activities.
- Develop a standard specific consent form which is used for all unusual or one-off uses of student images. This specific consent form can be used for items like official school photographs, disclosing photos or videos to a third party (like the media) and any other circumstances which might be unique or different. Within a standard specific consent form, schools should also consider specific copyright permission if necessary.