Can you post that photo?

As a business operator, today’s social media landscape allows you to share photos with your followers to help build your brand and network.

But have you ever stopped to wonder whether you need permission to post that photo of your customer?

Photos may contain ‘personal information’

While individuals do not have a general right to privacy in Australia, their personal information is protected by the Privacy Act 1988 (Cth).

A photo of a person may contain personal information if:

the person’s identity is clear; or
the person is reasonably identifiable.

This means you are required to notify the subjects of those photos about certain matters, including:

What the photo will be used for (eg posting on your business’ website or Instagram page)
If the collection of the photo is required or authorised by law
Any third parties you may share the photo with
Any consequences if you do not take their photo
How they can access the photo

Express and informed consent from the individual is the preferred approach but other practical solutions may also be considered (eg displaying a prominent sign in your store window or verbally telling customers before taking their photo).

Not all photos of people reveal personal information (eg a photo taken from afar is less likely to be able to reasonably identify a person than a close up photo).

What about ‘sensitive information’?

There are stricter rules for photos that contain sensitive information as the mishandling of sensitive information may have a greater impact on affected individuals (eg discrimination based on the individual’s political opinions).

A photo of a person may be sensitive information if it reveals, for example, the person’s health condition, racial or ethnic origin, political opinions or religious beliefs.

Above all, you will need to obtain the consent of the person in the photo to you using the photo for the business’ marketing activities (eg posting on social media).

Other considerations

What about the consent of the property owner or the council for public property?

Does the photo include a celebrity, influencer or brand name? If so, you are likely to need their written consent to avoid implying an endorsement or other association between them and your business.

Think before you post

Social media is useful for businesses to promote their products and services and stay in touch with customers. Make sure you understand what steps you must take before taking or posting that photo to prevent any issues down the line.

Bespoke is here to help if you need any advice. Stay tuned for part 2 of this series, where we deal with using published images sourced from the internet.