Is consent needed to take photographs ior videos of students in schools? Simon White looks at this sensitive and contentious issue

There have been many instances reported in the press where schools haven’t allowed parents to take photographs or videos of their children in the school Nativity play. Usually, the dreaded Data Protection Act 1998 (the “Act”) is blamed because it strictly controls when ‘personal data’ (such as images and other data that identifies a living individual) may be ‘processed’ (processing includes the recording, holding and disclosure of personal data). In this article Simon White looks at why the Act is not to blame.

Does the Act apply to photographs or videos in schools?
It rarely applies to taking photographs or videos in schools and, where it does, the Information Commissioner’s Office (the ‘ICO’), which oversees enforcement of the Act, has advocated a common-sense application of it.

The Act notes, at Section 36, that ‘personal data processed by an individual only for the purposes of that individual’s personal, family or household affairs (including recreational purposes)’ are exempt from the Act. This would include photographs taken by family members of their children at school events.

Is there any guidance available on exactly when the Act does and does not apply?
There is. In its ‘Data Protection Good Practice Note’ on taking photographs in schools, the ICO has given some useful examples of scenarios where the Act will not apply:

  • ‘a parent takes a photograph of their child and some friends taking part in the school Sports Day to be put in the family photo album. These images are for personal use and the Data Protection Act does not apply‘; and
  • ‘grandparents are invited to the school nativity play and wish to video it. These images are for personal use and the Data Protection Act does not apply’.

There are, however, instances where the Act will apply and the school (or other organisation taking the photographs or film – such as the local newspaper) will need to comply with the Act. Examples are:

  • ‘A small group of pupils are photographed during a science lesson and the photo is to be used in the school prospectus. This will be personal data but will not breach the Act as long as the children and/or their guardians are aware this is happening and the context in which the photo will be used.’
  • ‘A photograph is taken by a local newspaper of a school awards ceremony. As long as the school has agreed to this, and the children and/or their guardians are aware that photographs of those attending the ceremony may appear in the newspaper, this will not breach the Act.’

Should we be obtaining consent?
In circumstances where the Act does apply, the key obligation of schools or the relevant third party is to ensure that consent from parents (or guardians) and pupils is obtained for that photography or filming. In its Good Practice Note, the ICO advocates a common sense approach to obtaining this consent:

‘…a common sense approach suggests that if the photographer asks for permission to take a photograph, this will usually be enough to ensure compliance… Photos taken for official school use may be covered by the Act and pupils and students should be advised why they are being taken…’

What about implied consent, where parents do not object to the photo or video?
If, after being notified by the school that a pupil will be photographed or filmed (stating the reason for the photographs or film), the pupil or parent does not notify the school that they object, you can assume implied consent. It follows of course then that if a pupil, parent or guardian does object, the school should not take photographs or films of the relevant pupil on that occasion.

More info

Simon White is a data protection and freedom of information law specialist at Browne Jacobson LLP

This e-bulletin issue was first published in May 2009

About the author: Simon White