Birthday parties, valid consent and how not to break POPIA law

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Beware the consequences of sharing pictures of other people
Beware the consequences of sharing pictures of other people

The Information Regulator of South Africa has recently reminded the public that photographs clearly identifying an individual are regarded as personal information. 

This is in terms of the Protection of Personal Information Act which became enforceable in early July this year. 

The changes to the law mean that the distribution of images of people is regarded as processing of personal information in terms of the act. 

The act prohibits the distribution of personal information, including images of people, without their consent. What does this mean, though, practically? 

Candice le Sueur Fisher, a Cape Town-based privacy and ethics consultant, describes for Parent24 how this has implications for families and school employees who may be tempted to share photos of each other, and of children.

Must read: 'Privacy is a human right': POPIA and your school's obligations to protect your information

She notes that POPIA does not apply to:

  • "purely personal or household use" of personal information, but this is not further defined or described 

  • or to information, including photos, that is in the public domain and has been put there purposefully by the person who is in the photo or with their prior consent

Exclusions exist for journalistic and literary purposes. For children under 18 the consent must come from the parent or legal guardian.

Le Sueur Fisher stresses that "A photo of someone belongs to that person, just like any of their other personal information would belong to them. Generally, you would need their consent before you can distribute it, such as share or post online."

"The person asking for or receiving the consent is responsible for being able to prove that they had consent, if there is a dispute," she says, adding, that for example, a school cannot use photos of children in their marketing material without the parent's or guardian's consent.

Huge implications

Le Sueur Fisher further illustrates this by explaining how the EU has privacy laws similar to POPIA. 

"There, they have had a case where a grandmother who posted photos of her grandchildren online without consent from the parents was found to be in breach of their privacy law by the court," she reveals.

"While we cannot be certain, we do expect the same principles to be applied in South Africa, since the principles underlying our and their privacy laws are the same."  

"This could potentially have huge implications for sharing photos from birthday parties for example, where the person posting on Facebook would need the consent from the parents of all the children who are identifiable - prior to making the post," she says.

Also read: Locked down your social media? It's an 'illusion of control' warns privacy expert

Valid consent 

There is a snag- consent needs to be valid, Le Sueur Fisher says. 

"Consent is defined in POPIA as being a voluntary, specific and informed expression of will. This means a WhatsApp to all the moms that says, "if you don't want me to post photos of your child online after the party, let me know, otherwise I accept that you consent" would be invalid, and that parent would be in breach of POPIA."

In order for consent to be valid, in this case, every parent specifically has to say YES, or click a button or do something to express their willLe Sueur Fisher says.

They must have enough information to make an "informed" decision. The one bit that is often missed is "voluntary", which in the EU has come to mean that you are truly free to make a choice without any negative repercussions. 

"So consent would be invalid if you say "you have to give consent for me to post photos on Facebook to come to the party". The negative consequence is that if you say no (withhold consent), you or your child faces a negative consequence," she said.

Le Sueur Fisher adds "I sincerely hope that this is a ridiculous example and that no adults would be so callous as to exclude children from events because their parents are protecting their right to privacy. That would be discrimination on the basis of privacy preferences." 

She notes that posting an edited picture on social media, where children's faces are covered or obscured, technically is in line with the law and would therefore be allowed.  

"Keeping a scrapbook at home with photos of birthday parties, on the other hand, would certainly qualify as "purely personal and household use" so break out the glue," she reassures us.

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