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February 26, 2021

Question from Sharon Bright ([email protected])

We are a medium sized rural business operating in WA and are trying to determine what steps we need to have in place which will allow us to use our employees photo’s for our business social media, without the need to request permission for every photo. We believe that photos which can identify a person may be considered personal information and therefore is regulated by the Privacy Act, and that there is an exemption from APPs under section 7B(3) for employee records exemption, but are not sure if this would be applicable to employee photo’s for use in social media. This question has arisen as we would like to welcome new staff and take other photos of our business for use in social media, usually we would simply speak to the staff and ask if they were okay with having a photo taken and posted to social media but this has been complicated further by some staff being under the age of 18yrs. Do we therefore need to request guardian/parental approval to post photo on social media even if the employee agrees? Should we/can we legally incorporate a clause in our contracts which permits the use of photo’s taken for the purpose of our business social media, unless and employee withdraws consent? Any clarification you can provide would be appreciated.

Hi Sharon,

Unfortunately the Help Desk service is only able to provide general guidance and clarification of the law, and we are not able to provide specific legal advice.

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 risk of a privacy complaint.

Given the complexity of both this area and your proposals, we recommend you seeking formal legal advice if you have concerns.  If required, you may contact Hannah Dunai, Senior Associate at Holding Redlich, for professional legal advice on a commercial basis at (03) 9321 9816 or [email protected].

In the meantime, I recommend that you browse through the ‘Privacy and Data Protection’ chapter in the employment law Handbook, which contains further useful information on this topic.

Kind regards,

Matthew Gough

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