Images of individuals in photographs or video (images) are treated as personal information under the Privacy Act 1988 (Privacy Act) where the person’s identity is clear or can reasonably be worked out from that image. Images of individuals may also contain sensitive information if, for example, the individual’s racial or ethnic origin or religious beliefs is apparent.
If you are an organisation covered by the Privacy Act, you may only collect images of identifiable individuals if it is reasonably necessary for one of your organisation’s functions or activities.
Consent is not required to collect image of identifiable individuals unless the image records sensitive information about the individual. However, you must take reasonable steps to make sure the individual is aware of the following:
- who you are and how they can contact you
- how, when and from where the images are being taken
- if the collection of the images is required or authorised by law
- what you are taking their image for
- if there are any consequences for them if you don’t collect their image
- any other organisations or people with whom you usually share personal information
- how they can get access to it later, and
- whether you are likely to send the images overseas.
For example, you need to tell the individual if you are taking photographs for a website which is not hosted in Australia. However, you may not need to explain when and how the photographs will be taken if it will be obvious from the circumstances and you won’t need to provide your contact details if the individual has them already.
More information about notifying individuals of the collection of their personal information can be found in Chapter 5 of the APP Guidelines.
Generally speaking, individuals are sensitive to photographs and video of them being published, particularly on the web, and so it is good practice to seek their express consent after telling them, in as much detail as possible, about what their picture will be used for and who will be able to see it.
The Privacy Act protects the personal information of both adults and children alike. Organisations are strongly encouraged to use particular care in the handling the images and other personal information of children. Depending on the age and ability of the child to understand your explanation about what is going to happen with their picture and to make a truly informed choice, you should discuss these things with their parent or guardian first. You should also be aware of and meet the requirements of any other legislation that protects children.
If you then use the picture for something that you didn’t tell the individual about, you will probably need the individual’s consent, unless they would reasonably expect you to use their image for this other purpose.
It is also important to note that media organisations that are publicly committed to a published privacy standard are exempt from the Privacy Act for their journalistic activity. More detail about this exemption is contained in the APP Guidelines.
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