The Information Commissioner's guidance on this is not necessarily quite
clear on this type of area. The current guidance note issued to local
authorities on photographs in schools (but recommended to schools,
colleges and universities) states:
"A small group of pupils are photographed during a science lesson and
the photo is to be used in the school prospectus. This will be personal
data but will not breach the Act as long as the children and/or their
guardians are aware this is happening and the context in which the photo
will be used."
This seems odd to me on at least one level - it seems to imply that
school children themselves can give consent in a relatively relaxed and
potentially quite uninformed way. I do not dispute that university
students are in a much better position to object to a photograph of them
being taken whether they know the intended context or not - but can
*all* school children be presumed to consent because they "are aware of
what is happening" (i.e. someone - possibly in authority in the school -
is taking their photograph) *and* because they have knowledge of the
context in which the photograph will be used? What does having knowledge
of the context really mean - from the point of view of a child?
And it seems to me that at the very least the guidance should be
re-prioritised - i.e. it should be made clear that *first of all* the
pupils be told the context of the intended use and secondly they are
made aware that a photograph will be taken. Nevertheless, it still
places a high burden on children to agree to both (and the guidance
seems to imply that all pupils can consent). Presumably it fits the type
of scenario raised by Gillian. But as I have said, college or university
students are more likely to be able to object to this in a way that
pupils are not.
I have a file copy (undated) of the guidance note from which I took the
above quotation and on the exact same point the previous guidance note
appears to be rather more unambiguous (the other way!):
"A small group of pupils are photographed during a science lesson and
the photo is to be used in the school prospectus. This is unlikely to be
personal data and the Act wouldn't apply."
This scenario has gone from data which is not personal data to being
personal data.
So at some point the IC's advice has changed and the issue has obviously
been narrowed. I'm not sure if that is as a result of the Durant case
and that would surprise me (and in passing I'm not sure I would use it
as an authority in the way the TASI site does anyway because the Durant
case is obviously quite different on the facts).
The safest route, it seems to me anyway, is to adopt the more recent
guidance but reverse the order (a simple point but, I think, an
important one) i.e. make it clear to people that photos will be taken
and what the purposes are, and if they object give them a chance to get
out of the line of sight before anything is taken.
Recently, I was at the Online Conference in December. A chap came in to
a session with a camera and took loads of photos of the panel *and* the
audience. The panel might have known that this would be part and parcel
of their roles. I'm not entirely clear that he had any right to do so in
terms of the audience. Nobody objected - have we given consent? Do you
interrupt a whole session and telling him to stop snapping you? Do you
leave? Do you hide under the chair? Was there a warning in the
conference documentation stating that such photography would take place
(and if there was I didn't see it)? If there was, is it valid consent?
By being at the conference can you remotely be presumed to be giving
informed consent just because anyone who can pay the fee is there? ...
Laurence
Laurence W. Bebbington
Faculty Team Leader (Social Sciences, Law and Education)
Information Services
Hallward Library
University Park Campus
The University of Nottingham
Nottingham
NG7 2RD
-----Original Message-----
From: A general Library and Information Science list for news and
discussion. [mailto:[log in to unmask]] On Behalf Of
[log in to unmask]
Sent: 16 January 2008 15:47
To: [log in to unmask]
Subject: Re: Permission for using images
TASI's advice is very sensible and should be followed
Charles
Professor Charles Oppenheim
Head
Department of Information Science
Loughborough University
Loughborough
Leics LE11 3TU
Tel 01509-223065
Fax 01509 223053
e mail [log in to unmask]
-----Original Message-----
From: A general Library and Information Science list for news and
discussion. [mailto:[log in to unmask]] On Behalf Of Grant Young
Sent: 16 January 2008 15:40
To: [log in to unmask]
Subject: Re: Permission for using images
Dear Gillian and others
TASI has put up some information on how data protection might relate to
images, see:
<http://www.tasi.ac.uk/advice/managing/data_protection.html>
Please note that this document was last updated in January 2005, so
there may be some more recent case law that has further clarified the
issues it raises. We ran this document past the Information
Commissioner's Office (ICO) for comment before we published it. While
they had no objections to the content, they made it clear that they do
not provide any endorsement for presentations by other parties, so it
should be read with this in mind. You should also be aware that TASI
cannot provide any legal advice.
If you have or others have specific queries relating to data protection,
I've always found the ICO's enquiry service extremely helpful. In my
experience they seem to take a fairly pragmatic approach. Contact
details here:
<http://www.ico.gov.uk/Global/online_enquiries.aspx>
They also have a lot of useful resources on their website - nothing I've
found that comprehensively deals with images, but some useful
information about CCTV footage and the following document about taking
photographs in school settings:
<http://www.ico.gov.uk/upload/documents/library/data_protection/practica
l_application/taking_photos_v3.0_final.pdf>
Another useful source of information is JISC Legal, who provide a good
general overview of data protection:
<http://www.jisclegal.ac.uk/dataprotection/dataprotection.htm>
They also have an enquiry
service:<http://www.jisclegal.ac.uk/aboutUs.htm#contact>
Finally, I should note that we also have a short FAQ about model release
forms on our website - these are one means of obtaining
consent:
<http://www.tasi.ac.uk/advice/managing/faq_model_release.html>
With best wishes,
Grant
----------------------------------------------------------------
Grant Young
TASI Technical Research Officer (half time)* Digitisation Project
Manager (half time)**
*TASI - Technical Advisory Service for Images Free Helpdesk for UK
Further and Higher Education: <[log in to unmask]> Online advice documents:
<http://www.tasi.ac.uk/> Hands-on training:
<http://www.tasi.ac.uk/training/> A JISC Advisory Service
**19th Century Pamphlets Online Digitisation Project
<http://www.curl.ac.uk/projects/NineteenOnline.htm>
<http://www.ilrt.bris.ac.uk/aboutus/staff?search=cmgay>
----------------------------------------------------------------
--On 16 January 2008 12:54 +0000 "[log in to unmask]"
<[log in to unmask]> wrote:
> If the person is an identifiable individual (e.g., their name or other
> details are provided, or the person can be identified in other ways
> from the image), then the Data Protection Act requires that the
> individual be informed that a photo of them will be taken and placed
> on the web, and consent (ideally written) should be obtained from
> them. If a minor is involved, in general their parent/guardian's
> permission should be sought.
>
> Bear in mind the situation that an individual is on the run from an
> abusive parent/partner and does not want the abuser to know where
> he/she is, and you can see the reasons for this requirement.
>
> Charles
>
>
> Professor Charles Oppenheim
> Head
> Department of Information Science
> Loughborough University
> Loughborough
> Leics LE11 3TU
>
> Tel 01509-223065
> Fax 01509 223053
> e mail [log in to unmask]
> -----Original Message-----
> From: A general Library and Information Science list for news and
> discussion. [mailto:[log in to unmask]] On Behalf Of Rutherford,
> Gillian Sent: 16 January 2008 12:43
> To: [log in to unmask]
> Subject: Permission for using images
>
> Colleagues,
> Does anyone know the legal position of using photos of people on
> websites and in institutional publications? * Is written
consent
> needed?
> * Are there age restrictions to such permissions needed?
> * Etc.
> Any information about this would be very welcome.
> Many thanks in advance
> Regards
> Gillian
>
> Gillian Rutherford
> Head of Library Services
> Tyne Metropolitan College
> Embleton Avenue
> Wallsend
> Tyne and Wear
> NE28 9NJ
>
> 0191 229 5293
> P
>
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>
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