Home - Do we need permission to put photos of staff on social media?
June 27, 2021 on chapter Social media

We are a medium-size business in WA, and we are trying to increase our social media presence. One of the things we would like to do is feature staff members’ photos on our social media platforms. Must we ask for permission for each individual photo? And what do we do if the employee is aged under 18? Can we legally incorporate a clause in our contracts that permits the use of photos taken for the purpose of our business social media unless an employee withdraws consent?

Generally speaking, a business covered by the Privacy Act may only collect photos of identifiable individuals if it is “reasonably necessary” for the functions or activities of that business. Consent is not required to collect such photos unless they include sensitive information about those individuals. Sensitive information here includes information such as an employee’s racial or ethnic origin, religious beliefs, political associations, sexual orientation and criminal record. When it comes to handling photographs with persons under 18, particular care must be taken to ensure that the child understands what their photo will be used for, which generally requires a discussion with their parent or guardian first.

The employee records exemption under section 7B(3) applies to personal information that directly relates to the employment of an existing or prospective employee.

While an employer may use this exemption to collect photographs of employees for identification purposes, what is being proposed here is the distribution/publication of such photos on social media, which raises numerous privacy obligations that must be adhered to. Generally speaking, obtaining informed consent about the intended use of the photos would minimise the risk of a privacy complaint.

Given the complexity of both this area and your proposals, we recommend you seek formal legal advice if you have concerns.


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