In order to ensure compliance with the Data Protection Act a photographer should obtain the prior written consent of the persons being photographed. In the case of children or minors (under 18 years) the permission of the child’s parent, guardian or carer will need to be obtained. The photographed person should be made aware why the photographer is using that person’s photo, what the photograph will be used for and who could potentially look at the photographs. It is common for photographers to have a standard consent form which the person being photographed will sign prior to any photo shoot. Once a photograph has been taken it’s important that the photo is only used for the purposes described.
Where consent is not needed
The following circumstances may not require the written consent of the individual being photographed:
If it is reasonable to assume that the person is aware that their photograph may be published and that neither the photograph itself nor the context in which it is used could cause any potential harm or distress to that person.
Where the individual photographed is unrecognisable e.g. if they have their back to the camera, or they appear out of focus in the foreground of a photograph while the camera zooms in on object in the background.
Where photographs are being taken at an event attended by large crowds within a public area, such as a sports event or a festival, the consent of all the attendees is not necessary. But the photographs must not be used out of context, and there must be no reason to believe that damage or distress could potentially be caused to the people appearing in the photographs. If photographs are being captured at an event attended by large crowds within a private area, such as a private party, then it is advisable that the attendees are informed of the photographer’s presence. This could be made apparent on event invitation cards or displaying appropriate notice signs at the event. The notice should identify the photographer, how the photographs will be used and that people should make themselves known if they do not want to appear in publicity materials.
Withdrawal of consent
Consent must be freely given and as such people have the right to change their mind. If somebody asks for their photograph not to be used, consideration to all the circumstances in that particular matter must be given before deciding what action is practical and reasonable. It is always prudent to check with your legal advisor should such circumstances arise.
Children or minors
Extra care should be taken when photographing children and minors. Where the child is identifiable, specific parental consent is needed. This applies even where photos are being taken at an event as it not appropriate to rely on notices which children may not fully understand the implication off. If it is not possible to obtain parental consent, for instance at an open event where pre-registration is not required, then the ability to take and use any photographs will be restricted where a child is identifiable. Furthermore, even though it may appear that the child will not be identifiable, a school uniform, for example, might make them identifiable.
Practical considerations to ensure compliance:
The Data Protection Act only applies the living people. If there is certainty that individuals photographed have died, Data Protection will be of no issue.
Obtain written consent. It is good practice to have the persons being photographed sign a standard consent form. The consent form should detail the intended use of the photography.
An opt-out approach when photographing at events. When photographing at an event inform the group of the purpose of the photography and how the photographs are to be used and give people time to opt-out of being photographed if they wish.
Consider other legal issues involved in using an image: These can include copyright or moral rights.