IS YOUR SCHOOL GETTING IT RIGHT WHEN IT COMES TO PHOTO CONSENT?

 In Privacy, School photo management

With 80% of Australians now saying they would never want organisations sharing ‘Photos of my kids/family’ with third parties – higher than any other type of data or information – isn’t it time we checked in with our schools on how they manage photo consent?

I’ve had the privileged opportunity to speak with countless school Principals, school managers and administrators about the topics I’m passionate about, namely the protection of children in online environments, and privacy-forward alternatives to social media when schools are collecting, managing and sharing student photos.

I truly believe that students and their families have a right to know what is going to happen to their personal information collected at school – which, of course, includes their photographs – and I am thrilled to see others now joining in on this conversation about consent without restraint.

There will be times when it is entirely appropriate for a school to allow students (or their parent/guardian depending on age) to specify, by way of express consent or agreement, what can be done with their personal information. But don’t just take my word for it. You’ll find that Australian Federal and State privacy laws (as well as laws relating specifically to education, e.g. Queensland’s Education (General Provisions) Act 2006) are quite clear on this topic as well.

THE VARIOUS APPROACHES USED TODAY

The issue of managing consent is a tense topic. Some schools see consent as a panacea and opt for the all-in bundled approach (“If we have consent for everything all on one form, we are covered”) or the coercive approach (“If consent isn’t provided, a student cannot enrol”).  Others see it as a burden and apply a set-and-forget approach (“Let’s get consent once upon enrolment”) or copy from a template from a similar institution. There is also the under the radar approach (“Let’s not worry about it until someone complains”), the change-averse approach (“We’ve always done it this way…”), the risk-management approach (“What we have is probably good enough to keep the wolves at bay”) and, my favourite, the whoopsie (“Yikes! Better late than never…”).

More rarely have I seen a considered consent model deployed, where the situations requiring consent are clearly understood and the four hallmarks of a true consent are evident – these being that the consent is voluntary, informed, specific and current. This is particularly worrisome with respect to the use and disclosure of student photos and, more broadly, the responsibility of schools to tread carefully when dealing with student personal information in digital environments (such as publicly accessible school websites and various social media feeds).

I believe that a school’s approach to consent often reflects the balancing act they face – supporting the care and educational outcomes of students while tackling challenging business and administrative realities. However, it is important for schools to recognise the vital role of consent and to commit to best practice in this area.

7 WAYS SCHOOLS CAN EASILY ADOPT ‘BEST PRACTICE’ PHOTO CONSENT

At the same time as speaking to schools across Australia, I’ve also been exploring the privacy law landscape with key government bodies and legal experts. Here is what I’ve learned.

In the context of using and disclosing student photos, schools should:

  1. Be aware of the various reasons consent may need to be sought – such as publication of student photos on social media – and adhere to written administrative policies and procedures in this regard.
  2. Treat consent as an active process – review/ update it often and do not rely on the silence of students to “imply” that they are okay with a particular activity.
  3. Be clear about the activity the student is being asked to consent to. A blanket consent for the school to “use and disclose student photos” is not sufficient.
  4. Do not bundle one consent (e.g. for the administering of Panadol in a medical circumstance) with another (e.g. the ability to post student photos on the school’s Facebook page). Bundled consent makes it difficult for a student to agree to one thing but not another.
  5. Avoid forced consent where there is a suggestion that the student’s ability to attend school (or school activities such as sporting events, theatre productions or fundraising events) is contingent on the consent being provided. A forced consent is not consent.
  6. Be clear that a parent/student can withdraw their consent at any time.
  7. Provide an easy way for consent to be withdrawn by parents/students. This could be achieved by using the same medium for providing and withdrawing consent – such as access to an active parent-accessible online consent form where changes can be made in real time.

In a positive development, just last week the NSW Department of Education weighed in on the topic of consent by warning parents not to take photos of children on school grounds without explicit consent. I am not sure how this approach will be managed in practice; however, I look forward to the continuing discussion in this space.

If you too have concerns about how photo consent is managed at school, please share the above list with your school to help them make the necessary changes which will improve how child photos are handled in schools throughout Australia.

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