Image privacy rights and your child

Many schools capture moments of their students on camera or video. For example, during school plays, sports functions, and award ceremonies. But, when Naomi and Steven, parents of Aaron (then aged seven), received an email from Aaron’s art teacher informing them that he was going to be in a video about their art lessons, Naomi was uncomfortable.

The video was already edited, which meant that Aaron had been recorded without her consent and the art teacher was asking for permission after the fact.

Naomi asked to view the video, and when it was sent through, she felt even more uneasy. This wasn’t a group video of Aaron and the other kids in the art class; it was a video of Aaron alone and in close-up receiving direction from the teacher and interacting with her in his sweet and enthusiastic way.

Naomi called the art teacher to ask what the video was for, and she said that it was to be shown, only once, at a church open day (many of the children in the art class came from the teacher’s church, which Naomi and Steven do not attend). Naomi probed further, and the teacher then admitted that she had hoped to put it on Facebook as well.

“We sent a clearly worded email explaining that we were not comfortable with our son being used for marketing purposes. We requested that they delete all original versions of the footage,” says Naomi.

Consent should be understood

It’s important for people who work with children to understand the implications of recording or photographing their charges – and should certainly ask permission in advance and accept that the answer could easily be no.

Emma Sadleir, a media law consultant, explains that children have a common-law right to privacy and that they – and their families – have a reasonable expectation of privacy in certain sets of circumstances.

Breach of privacy

“There are two defences for a breach of privacy,”  explains Emma. “The first is consent. For example, when you sign a school contract, you generally consent to the school using your child’s image for school marketing purposes, including on social media.” For instance, a school might send a photo of their winning under-14 netball team to the local newspaper. Somewhere in its file on each student, there should be a signed letter of consent from the featured children’s parents.
“The second defence is if the invasion of privacy is in the public interest – for example, an older child committing an act of vandalism,” Emma explains.

In the case of Aaron’s art teacher, there was no consent and no public interest, so the art teacher was acting irresponsibly. However, as Naomi points out, no harm was intended – it’s just that people in positions of caring for children should understand that consent is required.

“Parental consent should be obtained when sharing images or media of children,” says Catherine Jenkin, editor of a parenting website.

“It’s as simple as including a tick box on admission forms or an indemnity form for an extramural activity or excursion. Schools have taken to publicising their events and promoting themselves using social media platforms, but sharing media of minors without parental consent, especially when it can be viewed as advertising, is a problem.”

Small-scale business marketing

Children are often photographed or recorded without their parents’ consent when a parent at a school has a child-related business and wants to use her child’s classmates as models. They are often given something from the product range in return.

Alison, mom of Jack (then aged four), consented to this once because a mom at Jack’s school was selling a range of sun hats. However, when consent was assumed for the next marketing shoot – this time involving the children in their beachwear – she withdrew her consent.

“It was fine when he was in a T-shirt. It was not OK when he was going to be only in shorts and a hat – and I was worried about the way in which the mom had just assumed she could keep using the school children for her business’s marketing.”

In cases like these, parents should be aware that their children’s likeness has value and that if the business owner had gone through an agency, she would have had to pay thousands of rands for the use of those images. While most parents are happy to help out a friend and receive a small token of appreciation in return, they should be aware that they are saving their friends a fortune in model fees.

Agencies also carefully control usage rights, which means that the photos of the models can only be used under specific circumstances and for a set period of time. Small business owners often don’t know that they need to do this and assume that they have a right to keep using their photos in any marketing material for perpetuity.

However, for the parents of a child used as a model, agreeing that your child appears in a brochure is very different from letting them appear on a massive billboard overlooking the highway. If you have signed consent for “all uses” without thinking it through, there’s not much you can do about it.

Loss of control

“I don’t want to scaremonger, but there are cases where, once the content is out there, it ends up in the wrong hands,” says Emma. The worst examples of this is identity theft or your children’s likenesses being Photoshopped onto other bodies on pornography sites.

Emma points out that the rules have changed. A photo of a child 20 years ago existed in a different way to images today. Not only do parents have a responsibility to control the use of their children’s likeness, but they also need to consider the long-term implications of the uses that they do allow.

“We’re robbing our children of their online anonymity,” says Catherine. “It’s easy to forget this as parents, because we’ve become accustomed to having an online life, often viewing it as an important aspect of our social, professional, and personal lives.”

While neither Emma nor Catherine are saying that parents should withhold consent from schools or small business owners, they should think carefully about the implications and longevity of any images or recordings, and not give their consent without due consideration.