Is it OK? Duty of care, law & ethics in NSW youth work:
A guide to common legal and ethical dilemmas
(2006) by Nick Manning
contents list
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Can we use photos of young people for various publications like our newsletter, brochures, website and local newspaper stories etc.
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Should we allow media photographers, parents or members of the public to take photos or video at our events eg. a skate comp?
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Are there specific legal protections for under 18s?
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What about when we work with schools?
Basic legal principles
There is no law stopping someone from photographing or videoing someone with or without their consent. The photographer (or their employer) owns not just the tape, file or print itself, but also the copyright in the photo/video - the right to copy and use the photo/video.
The people in the photo/video do not have legal rights over how it is used, except as outlined below.
Youth service photography & video
People you can't recognise in the shot
There are probably no legal or ethical issues involved in using photos or videos of young people who cannot be recognised eg. in crowd shots.
People you can recognise - display to centre users only
For "happy snaps" - photos to stick on your noticeboard or in your centre's photo album, or a video which you will play back just to the people who were there at the time, it is probably just a case of good manners. Either ask people if you can photograph/video them, or ask people to let you know if they are unhappy with their photo going on the noticeboard or in the album, or video of them being shown in the centre.
People you can recognise in the shot - display to a wider audience
To show a photo or video to a wider audience, you should be more careful to get "informed consent" from any young person who can be recognised. This is probably a good ethical approach but is also important in order to comply with privacy law.
Privacy & confidentiality
Showing, outside of your agency, a photo or video of a client who can be recognised, may breach privacy laws, unless you have their consent. Showing a photo or video could effectively disclose to other people, for example:
- that they are a client of your agency
- that they live in a certain area (your target area)
- that they have certain problems which your agency addresses (eg. drug use, crime etc).
For more about privacy laws, see Privacy & confidentiality for NSW youth & welfare agencies at www.yapa.org.au/youthwork/facts/privacy.php
Consent
"Informed consent" means that before a person gives their consent, you inform them about how you will use the photo/video. So for example you should tell them:
- what sorts of places the photo/video will be shown
- which types of publications you will use it in
- whether the photo/video (or a publication that the photo is in) will be on a website
- whether their name or other identifying information will be included with the photo/video.
Young people can consent verbally or in writing - there is no set format. However if the situation is very sensitive it may be safer to confirm their consent in writing.
Young people of any age can give their own consent if they can understand the issues involved in consenting. If they can't understand (eg. because they are very young, or have an intellectual impairment), you should consider getting a parent to consent.
A note about website photos
If you put a photo directly on a web page, the photo's filename (usually ending in .jpg) is visible to the public eg. through image searches or by copying the image. Avoid the practice of the filename being the young person's name, eg. "john_smith.jpg", if they do not want their name used.
Defamation
Ethically and legally you should also ensure that any context you use the photo/video in does not risk defaming - damaging the reputation of - a young person who can be recognised, eg:
- You use a photo/video to promote your drug program or anger management course.
- Your brochure describes several projects. You include a photo of young people to illustrate one project, but readers associate the photo with a different project which has negative connotations (eg. drug use, crime etc).
You should be cautious even when the young person says that they don't mind about possible defamation.
Other people taking photos or video at your event
If your event is at a venue which you control, such as your own premises, or a hall which you have hired, then you can set the rules, including whether people can take photos or videos.
But should you stop other people taking photos? There are probably 2 main concerns:
- media
- paedophiles.
Media
Involving the media in your youth project can be a double-edged sword. Positive media coverage of your project can have lots of benefits. Negative coverage either of your project or of particular young people can be very damaging. Well-meaning media coverage still risks misrepresentation (eg. mis-quoting or quoting out of context, which happens regularly). See YAPA's fact sheet Using the media.
You should also ensure that in involving the media you comply with privacy law. Anything published which could identify a young person, such as their photo, requires informed consent (see above).
Paedophiles
Recently there has been concern about people taking photos or video of children and young people, especially at beaches, sporting matches and performances.
You are not legally required to:
- ban photography and videoing of children
- somehow check that people are taking photos and video for proper purposes.
Parents will always want to take photos and video of their children. Realistically, other children and young people will end up appearing in these photos and videos too.
Of course if someone's specific behaviour taking photos or video causes you to be seriously concerned, you could speak to the police, but try not to over-react to what might be an innocent situation.
Paedophiles & the law: some background info
It is not an offence to possess or publish images of people, including children, generally. However, it is an offence to possess, produce or distribute child pornography, or place images on the internet which could be regarded as harassing or offensive.
NSW has an offence of filming for indecent purposes (eg. if someone is in a state of undress or engaged in a private act) which together with the laws against offensive conduct under the Summary Offences Act, give you good grounds to make a complaint to police if you feel someone is acting in this way by photographing/ filming young people.
Specific legal protection for some under 18s
There are laws protecting under 18s from having their identities published or broadcast in relation to:
- criminal proceedings (victims, witnesses and defendants/offenders)
- child protection and out-of-home care ("DoCS kids")
- family law court cases.
The specific details of these laws are complicated. For example in some situations a young person can consent and in others they cannot. You should get legal advice if this is an issue.
It may be simpler to make sure that you never publish or broadcast anything which might:
- identify a young person (eg. name or photo or other identifying details),
and - say or imply that they have been involved in criminal proceedings, a child protection case or out-of-home care, or a family law court case.
You can publish and broadcast stuff about young people's involvement in these cases as long as the young person cannot be identified by anyone.
Publishing and broadcasting can include eg. in brochures, reports, websites, newspaper articles, radio, TV, videos, CD-ROMs, podcasts etc.
Schools
Schools have their own rules and requirements. If you are running a youth program in or with a school, check the school's policy too.
Notes
Published: 2006. Opinions are the author's and not necessarily YAPA's.
Applicable to NSW youth services (non-government agencies & local councils) providing accommodation, welfare, social or recreation services to young people. May not be consistent with laws and guidelines in, schools, out-of-home care or health services. "young people" - aged roughly 12-25 years old (unless stated otherwise).
Be careful! YAPA and the author took reasonable care to ensure that this information is correct. However government regulations, laws and standards are complex and changing constantly. The author/s have no health, occupational health and safety, or legal qualifications (unless stated), and information provided is general - it is not specific legal or professional advice. Do not rely on it - check with other publications and authorities and if necessary get qualified legal or professional advice for your situation.
Copyright 2006 Nick Manning. You can: a) quote small amounts of text if you acknowledge the author, publisher, web address & date; b) print out multiple copies of this web page but only if you print the whole web page. No other use permitted without prior consent. Do not put large amounts or all of the text in any other document, including: a policy & procedure manual; a presentation (eg. Powerpoint); a training/learning resource book (eg. for TAFE); a web page. Copyright and training enquiries: nmanning@pnc.com.au
