Frequently asked questions
What if I publish a photograph without obtaining consent?
If you publish a photograph without consent the parent (or child, if they have sufficient understanding), may make a complaint against the data controller (eg Hampshire County Council or a school) to the Information Commissioner. In some cases this has resulted in prosecution and damages being awarded to the person in the photograph.
Below what age is parental permission required before taking photographs of children?
Under the Data Protection Act 1998, the data subject (the person appearing in the photograph) is responsible for deciding whether or not their photograph should be taken, provided they are able to understand their rights. And it is up to you to inform them why you want to take their photograph and how it will be used.
The Information Commissioner's legal guidance states that by the age of 12 a child is considered to have `sufficient maturity' to understand their rights under the Act. However, in discussions with IT and Children's Services, it was agreed that parental consent should be sought up to the age of 18 years, so that we include both children and teenagers up to the age of higher education, ie those in Hampshire County Council educational establishments.
We have also taken advice from Legal Services, who agree that we should stick to 18 years. There are two reasons for this. Firstly, a child is legally under parental guidance until the age of 18 years. Therefore, if a younger child were to give consent but their parent did not, legally the parent's decision would be binding. Secondly, the age of capacity for entering into a contract is 18 years. If a child enters into a contract below that age, then the contract would not be binding on the child. However, the views of children aged 16 years and over should be considered.
As soon as a person reaches the age of 18 years, you do not need parental consent.
How can I decide whether it's all right to take photographs at a public event?
Assuming consent cannot reasonably be sought because the photographs are taken in a public place, eg a street scene or at the New Forest Show, and if you can answer `yes' to the following questions, it would be reasonable to take the photographs and use them for the original purpose without fear of being in breach of the Data Protection Act 1998.
Would people attending the event expect photographs to be taken?
Would people in the photograph probably consider themselves to be in a public place, with no expectation of privacy?
Do you think it unlikely that anyone would object to the photograph being taken? (You should bear in mind that an individual could be in a public place, such as a care home, but may not want any images in which they are present being used.)
Some venues, eg arts centres and country parks, might want to consider displaying signs stating that attendees may appear in photographs taken on the council's behalf for publicity purposes.
Do I need to obtain consent before taking photographs for school administration purposes, eg for school trips or SIMS (Schools Information Management System) records?
As long as the images are not used for any other purpose you will be acting lawfully in processing them. The problem arises when images are published or passed on to a third party (disclosed) without consent. This could be putting them on view for others to see (perhaps viewable by the public), publishing them to promote the school, recording class events or coverage by the local press of a celebrity's visit to the school.
What constitutes a `public event' in school terms, eg a school sports day or a Christmas production?
You could argue that school premises belong to the school and County Council, so they are not a public place. But you are inviting parents and guardians to the event, so it is a public event. Because the school is restricting access by only inviting family members, it is taking reasonable steps to restrict access. Teachers usually attend such an event, can monitor the scene, and may know most of the parents. Therefore, we think it unlikely that a school would be held responsible for a parent misusing images of children taken at a school event.
Schools may wish to create their own policy on taking photographs and DVDs at school events. You will find a policy template on Hantsnet. (Please note that this template is only available to staff using Hantsnet.) It is up to individual schools to decide whether or not to allow any photography at such events. Schools could create a disclaimer form to use for parents wanting to take photographs or film an event.
If you send photographs of a school event to the press, eg a nativity play or sports day, remember there is a risk that they may fall into the wrong hands if transferred electronically. Also, mail could be intercepted while being transferred. So you must obtain `explicit consent', which means getting a signature, before images are transferred electronically.
Can we allow photography contractors to access out SIMS database and put pupils' data on disk, so they can produce `photo cards' for pupils?
Schools should have a contract with photography contractors. The contract should state whether you have decided to give the contractor personal data held electronically by the school for processing on your behalf. The contract should tell the contractor to comply with the requirements of the principles of the Data Protection Act. It should also include a security statement in it - like the one found on Hantsnet at http://intranet.hants.gov.uk/dp/dp-policy/dp-contracts.htm. (Please note that this statement is only available to staff using Hantsnet.)
The photography company is acting as your contractor, so the school is responsible for ensuring that it complies with the Data Protection Act, especially with regard to security of data.
Parents should be told what processing is involved in producing school photographs, ideally in the school prospectus and/or in a form to parents requesting consent for their child's photo to be taken.
The contractor will not be breaching the Data Protection Act if the processing requirements are set out in writing, they have been agreed with the head teacher, both parties have signed, and the contactor complies. The school will have to be sure it has informed parents and obtained consent to disclose data for this purpose, and be satisfied with the contractor's security arrangements, ie what happens to the data when the project is complete and how the disks will be stored.
Can I use photographs of pupils for project displays at our school?
Yes. You can use images of pupils for project displays at your school as long as you have obtained consent, because the images will be on display to anyone coming into the school. We have included this option on the consent form for schools.
What should I think about before installing CCTV to monitor pupils' behaviour?
Some schools are now considering installing CCTV in every classroom to monitor and control bad behaviour by pupils, and to assist staff by providing evidence to clear teachers if they are falsely accused of abuse or assault. This type of monitoring comes under general monitoring of the class and, since it isn't directed at any one pupil, would not be considered `directed surveillance'. Monitoring is taking place to aid the delivery of education, as well as the protection of teachers.
Parents should be informed that this type of general monitoring takes place. You will have to comply with your school's CCTV policy and any directed surveillance of an individual or specific small group of pupils will require either:
pupils being informed they are being monitored, or
a correct authorisation process being in place if it is carried out without their knowledge - see http://intranet.hants.gov.uk/ripa.htm. (Please note that this information is only available to staff using Hantsnet.)
The Information Commissioner's website has excellent advice, including a Code of Practice.
As stated in the advice given to schools on webcams, the area in which you are using CCTV must be well signposted so that people know it is there before they enter that area.