Legal: Are you ready for your close up?

If a teacher has refused permission for their image to be used, would that prevent the school from using the image?

Copyright

The person who takes the photograph owns the copyright and has the right to re-produce and publish it, and is also entitled to restrict its use. If they are not the photographer, the subject of the photograph does not have any copyright in the photo.

Defamation

Publication can be defamatory if the photograph, or the context in which it is published, lowers the public’s estimation of the person portrayed, exposes them to hatred, contempt or ridicule, or causes them to be shunned or avoided. For example, a bad hair day would not qualify, but an image of a teacher standing beside an offensive banner might.

A photograph can be defamatory on its own, or because it is combined with a caption or unfavourable editing. If published in such a defamatory context, you can ask for it to be removed.

Australian consumer law: misleading and deceptive conduct

To prevent the unauthorised use of an image under this part of Australian consumer law, it is necessary to show that it would mislead or deceive the public.

The mere use of a teacher’s image in school publications is unlikely to be found to mislead or deceive.

Passing off

If a teacher can show that publication amounts to a deceptive misappropriation of their reputation, they may be able to establish a passing off cause of action. They would need to show they have a substantial reputation and that misuse of their image causes damage. This may be relevant where a photograph is used by a school after the teacher has embarked on a different career or established a significant reputation at another school.

Is there a general right of privacy?

The Privacy Act 1988 (Cth) does not include a general right of privacy, thus, in normal circumstances, a person’s consent is not required for their photo to be taken or their image recorded.

However, in some circumstances a person’s image could be regarded as “personal information” and its publication would breach the act. For example, an image of someone standing outside their home reveals their address, which is protected by the act.

It would be difficult to argue that publication of a member’s image would reveal private information in such a way. School staff are known to the community and it is an essential requirement of employment that the school be able to identify them as a member of staff and identify their position and contact details.

If the image published does nothing more than identify them as a member of staff carrying out their duties, it is unlikely to give rise to grounds for complaint under the act.

Is there a legal action for invasion of privacy?

There are limited circumstances in which publication of images can amount to a breach of the law, such as breach of confidence or stalking. Photographs taken in private places such as toilet blocks or in the member’s home could give rise to a claim. Alternatively, indecent photographs or photographs used in an indecent manner can give rise to criminal liability.

However, it would be unusual for a member to be able to commence such a claim for photographs taken in the course of their employment. 

Online harassment

The Commonwealth Criminal Code provides criminal sanction for inappropriate use of images on the internet, or through email (Section 474.17 of the Criminal Code Act 1995 (Cth)).

Any menacing, harassing or offensive use of your image can be the subject of police complaint, although this again is unlikely to produce an avenue for challenging the use of school photographs on the school’s website.

What if a member expressly refuses permission?

Schools are not obliged to seek or obtain your permission before publication of photographs. Therefore, an express withdrawal of permission will not legally prevent a school from using the image.

As with most things, prevention is the best solution, and teachers may wish to absent themselves while photographs are being taken (or make sure their eyes are closed when the camera clicks).

As a general principle, posing for photographs is not an inherent requirement of working in a school and members are entitled to refuse. However you should exercise care. If you are directed by someone in authority (such as a principal) to participate in a school photograph, you ought to carefully consider your situation and get specific advice if you intend to refuse.

Rachel Drew and Edmund Burke                                                                                     Holding Redlich Lawyers 


Queensland Teachers' Journal, Vol 122 No 5, 21 July 2017, p27