Do privacy laws apply to photographs and video recordings? In short, yes they do.
The National Privacy Principals (NPP) governs privacy law in Australia. The NPP take the form of overarching principles, designed to offer guidelines for dealing with an individual’s personal information. Because of this, there can often be some uncertainty as to the application of the NPP.
The NPP seeks to protect personal information, being information that could be used to identify a person. This includes any images of individuals in photographs or film, in which a person’s identity is identifiable. It is therefore important to turn your mind to the NPP when publishing photographs or films containing images of individuals. For example:
· Uploading photographs of employees or colleagues on the work intranet or on the business website;
· Placing photographs of students in the school newsletter, advertisements or uploading them on the school website;
· Uploading video recordings of students performing at school concerts, sports carnivals or public speaking events;
· Placing photographs of sports club members in the club newsletter, advertisements or uploading them onto the club website or Facebook page.
Generally an organisation is not required to obtain a person’s express consent before they take a photograph or film a person or before they publish the photograph or film. However, there are exceptions, including where the image records sensitive information about a person.
While an individual’s consent is not strictly required, the general principles promoted in the NPP encourage organisations to obtain an individual’s consent before publishing any photographs or films containing that person’s image.
In respect of photographs and film containing images of children, the Office of the Australian Information Commissioner strongly encourages organisations to take particular care in handling such images. Organisations should seek the consent of the parent or guardian before publishing. It is also important to consider requirements under other legislation that protects children.