It is common for school employers to have photographic policies in order to comply with:
- The Data Protection Act 2018.
- The General Data Protection Regulations.
- Child Protection legislation and regulations.
The Information Commissioner, who is responsible for compliance with data protection legislation, has published advice on taking photographs in schools and colleges, and the advice set out in this briefing is drawn from that, together with guidance from the DfE and the Welsh Government.
This briefing sets out:
- the legal obligations upon schools and colleges.
- the role of head teachers.
- the implications for staff.
Photographs in schools
Photographic policies will usually cover some or all the following:
- individual or group portraits for parents/carers
- publicity photographs produced by the school for handbooks/websites
- parents/carers recording school events i.e. sports’ day
- press/media photography
- the use of CCTV cameras
Relevant guidance on each is set out below.
What is personal data?
The General Data Protection Regulations define personal data as any information which are related to an identified or identifiable natural person (i.e. a human being). Personal data is caught by data protection legislation if it is processed wholly or partly by automated means, or forms part of a relevant filing system. Furthermore, Section 68 of the Freedom of Information Act extends the definition of data to include “recorded information held by a public authority” which includes all data held and processed manually even if it does not form part of a relevant filing system.
Individual/group pupil photographs
Schools and colleges should use professional photographers to take individual/group pupil photographs. This will ensure compliance with the data protection legislation and that:
- material is used only for the school’s/college’s own purposes
- photographs are not used for any other purpose without seeking the data subject’s consent first
- the photographer does not share the photographs with any other party unless specifically required to do so under the contract with the school/college or where written permission has been given by the school/college
- the photographer/agency retains evidence that they have followed the steps set out above
Some schools/colleges make use of individual student portraits for security purposes, for example storing electronic images with other personal data. Images stored in this way fall within the definition of personal data and school/college management must therefore ensure that:
- parents/carers/guardians of students are informed that images are to be retained by the school/college
- images will be securely stored and only used by those authorised to do so
Publicity photographs produced by the schools/colleges for handbooks and/or websites
The Information Commissioner’s Good Practice note on ‘taking photographs in schools’ provides the following example:
"A small group of pupils are photographed during a science lesson and the photo is to be used in the school prospectus. This will be personal data but will not breach the Act as long as the children and/or their guardians are aware this is happening and of the context in which the photo will be used."
The DfE is not prescriptive on this point although they do advise (contrary to the Information Commissioner’s guidance) as follows:
"Schools and local authorities are free to decide on their own policies relating to the use of such images or the release of associated information for their own publicity purposes. We do, however, advise that the photographs and video images of pupils and staff are classed as personal data……"
The Union supports the DfE guidance and would expect schools/colleges to draw up their own policies on photography.
The NEU advises that if schools/colleges use images of students or staff in publicity material, such as school/college prospectuses, handbooks and websites, consent must be given by the individuals concerned or, in the case of pupils under the age of sixteen, by their parents/carers/guardians. Pupils/students must be advised of the purpose for which the photos are being taken.
If the images are to be retained for further use, the individual or legal guardian concerned must be informed and assured that the images are securely stored and only used by those authorised to do so.
The NEU view is that where photographs of students are used in school publications, including the website, the students should not be named. Conversely, if a student’s name appears, the student’s image should not.
There may be some circumstances where it would be appropriate for the school/college to publicise a student’s name with a photograph, for example, Head Girls and Head Boys, but the parents must be asked for their permission before such information is publicised if the student is not old enough to give consent on their own behalf. For the purposes of compliance with the DPA, a `fair processing’ notice should be issued by the school/college setting out:
- the identity of the data controller (usually the governing body)
- the purpose or purposes for which the photographs are intended to be processed
- any other organisations to which the photographs may be distributed; and
- when the photographs are likely to be destroyed
A school/college may decide to do this when a student first starts at the school/college or on an annual basis.
Parents/carers photographing school events
The Information Commissioner’s guidance gives the following example and advice:
"A parent takes a photo of their child and some friends taking part in the school sports day. These images are for personal use and the Data Protection Act does not apply. Grandparents are invited to the school nativity play and wish to video it. These images are for personal use and the Data Protection Act does not apply."
The DfE advises that schools and local authorities are free to develop and implement their own policies regarding the use of cameras and videos by parent/carers at school events. This would include a parent member of the PTA who videos an event and then sells copies to parents who may not have such recording equipment or school staff wanting to record events involving their students or their form group. Such material may not be for school publication use, but might be used later in the classroom, e.g. video, photos/slides/PowerPoint presentation of a geography field trip, history site study. As long as parents are notified of the purposes for which the photographs or images will be used there will be no conflict with data protection legislation.
Although data protection is not applicable here, there are two other considerations; practicalities and child protection issues.
The NEU advises that some or all the following suggestions could be incorporated into schools’ policies on parents/carers photographing school events:
- lnclude in the schools’ admission form, a section for parents/carers to sign to indicate that any images they take of school activities will not be used inappropriately.
- Include in letters inviting parents to school events a returnable slip for parents to sign indicating that any photographs taken will not be used inappropriately.
- Give written confirmation that photography only takes place in designated areas, for example during sports days on the sports fields.
- Where schools create their own photographic record of events, such arrangements should be announced in the letter inviting parents to the event.