It is commonplace for schools to publish photos of students in various forms, whether it be on the school’s website, in newsletters or in advertising materials. Yet schools often do not have appropriate measures in place to ensure they are not breaching privacy or copyright laws, or a school’s duty of care to its students, when using student photos.

Principals, as the primary decision-makers in schools, should turn their mind to the following issues before using student photos.

Copyright

The default position in copyright law is that the copyright owner in relation to a photo, or any artistic work, is the author, that is, the person who takes the photo.

From a school’s perspective, provided that one of its employees has taken a photo for the benefit of the school then the school will be entitled to use that photo without infringing anyone’s copyright.

However, schools will often receive student photos from outside sources, such as families, students or third-party photographers. In these cases schools should ensure they have written approval to use the photos for any intended purpose.

Privacy issues

Student photos will be considered “personal information” for the purposes of the Privacy Act 1988 (Cth), which will apply to many schools as they will be classified as “organisations” under the Act. The Act contains very strict rules for organisations that hold personal information around how that information can be collected, used and disclosed.

Before using a photo, a school should ensure it has informed consent from the student and their parents (or legal guardians). There are a number of ways to obtain that consent, but the key is to ensure that the school has communicated the type of photos it will be using, and how they will be used. Ideally this will be achieved by obtaining a parent’s or legal guardian’s written consent, but opt-out arrangements may also be used provided care is taken to ensure the arrangement is clearly communicated to parents.

Schools should also make sure that student photos are stored securely, and that an up-to-date and easily accessible privacy policy is maintained.

Duty of care

It is a well-established legal principle that schools owe students a duty of care, and that Principals in particular are charged with protecting students against injury during school hours when Principals are in a position to exercise control over students and the students are beyond the protection of their parents. [1]

Conceivably, this duty extends to injuries that may result from a school publishing student photos, for example where a student is bullied after fellow students view a photo in a school publication. This is a further reason for schools to obtain consent before publishing student photos.