According to the Privacy Act 1988 (the Act), when the identity of someone is easily discernible from an image or a video, the material is regarded as ‘personal information’. It is also possible for images and videos to contain ‘sensitive information’. This occurs if, and when, the person’s religion, race or ethnicity can become known from the images or videos. Businesses covered by the Act should be aware of the laws surrounding privacy. You can get up to speed by speaking with a small business solicitor about how to comply with these guidelines. A small business solicitor will be able to review your existing Privacy Policy for completeness or simply draft one from scratch if you do not already have one in place.

Lawful use and collection of images and videos 

For businesses that are required to comply with the Act, the collection of images and videos of recognisable individuals will only be lawful if it can be shown that the collection is reasonably necessary to fulfil an activity or function of the business.

Your small business solicitor will advise you of what circumstances do and do not require consent. Typically, consent is not required, however, it will be when the image/video contains sensitive information about the person in the image or video. Your small business solicitor should advise you of the numerous steps that must be taken to ensure the individuals understand the following details about the use or collection of the image including:

  • Your business name and contact details;
  • The time, location and method of taking the image or video;
  • The purpose of collecting their image or video;
  • Other businesses or organisations with which you intend to share the images or videos;
  • The means of accessing the images or videos; and
  • The likelihood of sharing the images or video with other individuals or business overseas.

Explanation of the requirements 

There are certain privacy law requirements that need further explanation by a small business solicitor. A good example of when you must inform an individual that you are taking his or her photo is when the image is to be placed online on a website that is hosted overseas. On the other hand, you might not be required to give an explanation of the time or place you plan to take the photos if the individual can work this out quite easily from the context. If the person already has your business’ contact details, you obviously will not need to supply them.

For more detailed information about the lawful collection of personal information of individuals, consult a small business solicitor and refer to the Australian Privacy Principles (Chapter 5). In general, the public are not willing to have their images or videos posted online. Getting their express consent is usually easier when you or your small business solicitor give the individual as much detail as possible about the intended use of the image or video.

As the Act protects the privacy rights of both children and adults, businesses are advised to take extra precautions when using images or videos of children. If you are unsure whether or not your use will be lawful, speak to a small business solicitor immediately. Whether you are allowed to use an image of a child might depend on the child’s ability to understand where, how and when the image will be used. Of course, this kind of discussion is best had with the child’s parents or guardian before seeking the child’s express consent. Speak with your small business solicitor about any other legislation aimed at protecting the interests of the child.

Conclusion                                                                                                 

Have you got a Privacy Policy in place? Are you intending on using images of individuals but do not know whether you are permitted to do so? Speak with a small business solicitor to avoid running into any legal problems down the track. Our small business solicitors have extensive experience in Australian Privacy Law and can give you the advice you need at a guaranteed fixed-fee.

Lachlan McKnight

Ask Lachlan a Question

If you would like further information on any of the topics mentioned in this article, please get in touch using the form on this page.