Daughters image being used in promotions without permission

dlpfan2019

Hi all,

First of all sorry if this the wrong part of the board but couldn't see where it would go

Okay so here we go....

I found out my daughters (6 years old) image was being used in a promotional campaign for a charity, they had taken the photo while at an event. I contacted them and said that although I was unhappy with her image being used I appreciate I was at the event and did not want to cause the charity costs in reprinting etc and therefore ask that after a period of 6 months the image was not used again.

I received an letter back from the HR department of the charity stating that they were dealing with it personally and they had ensured it had been removed from the system and would not be used again. 

12 months later I get an message from a friend to say that her image was being used again on a different promotion! I at this point put in a complaint and the promotion was pulled down. I received a half hearted apology ( imo ) and a promise it would not happen again

Yesterday I was shocked to see my daughters image appear on social media from them and that both the original and new promotion were back active on the charities website 

Should I be taking this to the ICO or is there a different route to take? I appreciate they may argue it was at an event but they clearly stated in writing numerous times they will stop using the image. As her image is the only one on the original promotion its not like they could have missed it in removing it!

Any advice appreciated

Undervalued

If the photograph had been taken in a public place and wasn't "posed" then you would not be able to prevent them from using it. If it was in any way set up e.g. "Would you stand over there and smile" then she was technically a model and has some control over the use of her image.  

As it was taken at "an event" it is a little more complicated as it would depend to some extent on the terms and conditions of attending the event etc. It is not uncommon to see a notification somewhere in the small print that photographs will be taken at an event and may be published and that, by attending, you are agreeing to this happening.

Obviously further complicated by the fact you say they had agreed not to use the photograph (which they may well not have been obliged to do) but are now using it again?

dlpfan2019

Yeah its a tricky one, its with there mascot so certainly posed

As I say I had agreed once I found out with it being used while they finished the promotion but we have had written confirmation it would not be used now twice from them. As she is only 6 as well I just feel they should not be going back on what they have said without seeking our permission

I will ask the ICO for advice tomorrow

Undervalued

As I mentioned, did you "agree" to photographs being taken / used as a condition of attending the event? Presumably you agreed to the photograph being taken as it was "posed"? What was the purpose? Was it something you specifically opted to do like pay £XX for a picture of your child with cuddly Bonzo or whatever? All of these things are relevant as to whether you can prevent its use.

However it is certainly not good that they agreed with you not to use the image (which as I say they may not have been obliged to do) and have now gone back on that.

If lots of people were at the "event" there may well be other photographs of your daughter with the mascot. You have no way of controlling their use.

Obviously this has all mushroomed in the digital age and with social media. In some ways the law hasn't caught up. The basic principle remains that if you are out in public anybody can take a photograph and publish it. Strangely you have more control if the photo was taken with your permission rather than without! The argument always was that if in a public place (or a private place with members of the public) anybody who was there could have seen whatever the photograph shows, so why is it different if people look at the photograph.

Undervalued

Just to add....

OP, the user name rang a bell and looking back I am reminded that you have asked several questions on here about privacy / GDPR matters all relating to charities.

I am not sure if they all relate to the same charity but if you have a real concern, or exceptional reasons why privacy is important then you probably need to take some professional advice. The ICO's helpline (like ACAS and similar) isn't really a substitute for proper one to one legal advice. 

The issues you raise in this thread are complex and stray into the area of what is often called the "judge made" privacy laws. It is sometimes said that this area of law is only really open to the seriously rich! An exceptionally well off famous female author is a good example!

Don't answer this but are there exceptional reasons why you don't want this photograph being used? If there are then I come back to my point about needing proper advice. Or is it more that you are unhappy about this particular charity for whatever reason?

However if it just a vague unease then in all honesty I think you need to try and accept that it is very very difficult to control what happens with any image that is captured outside your home. Even if it is technically unlawful for the image to be used, actually policing that is next to impossible.

DoaM

Does the fact that the subject is a minor not change anything? As you say, this is a tricky area of law and not something that can be commented on with legal confidence on a forum like this.

Undervalued

DoaM said:

Does the fact that the subject is a minor not change anything? As you say, this is a tricky area of law and not something that can be commented on with legal confidence on a forum like this.

Not really, which surprises a lot of people. The press operate (except when it suits them!!) within guidelines which limit their use of photographs of minors taken without permission. Some of the high profile privacy cases have surrounded images of child being used purely because they are the child of somebody famous. As I say that is a hugely complex area. 

The basic principle remains that in a public place you can take photographs of pretty much anything or anybody you can see from there (adult or child) without permission. Obviously, these days, if you were clearly taking lots of photographs of children in public places without their parents' permission it might well raise some suspicions! However it is not, in itself, illegal.

giraffe69

Given you made a request that it not be used again and they agree then to use it twice more smacks to me of gross incompetence. I'd write one final time to them and ask them to a. respond undertaking not to use the image again and b. to destroy the image and remove it from their servers or wherever they keep it and also confirm that.
Then, if they failed to do that and I felt inclined to do so I would write and complain to both the ICO's office and also the Charity Commissioner. My experience of the ICO's office is that they are totally useless in this respect so the Charity Commissioner may be of more help.
I volunteered for a charity which ran youth weekends and photos were taken and there was a standard permission item on the application form to attend for all those under 18.

Undervalued

giraffe69 said:

Given you made a request that it not be used again and they agree then to use it twice more smacks to me of gross incompetence. I'd write one final time to them and ask them to a. respond undertaking not to use the image again and b. to destroy the image and remove it from their servers or wherever they keep it and also confirm that.
Then, if they failed to do that and I felt inclined to do so I would write and complain to both the ICO's office and also the Charity Commissioner. My experience of the ICO's office is that they are totally useless in this respect so the Charity Commissioner may be of more help.
I volunteered for a charity which ran youth weekends and photos were taken and there was a standard permission item on the application form to attend for all those under 18.

I totally agree with your first sentence.

However, regarding the second sentence I think I would write nicely and not make demands that the OP may be unable to enforce.

For the reasons I have explained I am not convinced the charity are doing anything unlawful. However it is difficult to see why they would want to deliberately go against the OP's wishes, particularly as they apparently agreed once. I suppose the exception might be if they have spent a significant amount of money on printing or similar?

As you indicate in your final paragraph, that sort of clause is quite normal. It wouldn't surprise me if the OP unwittingly agreed to the use of any photographs taken at the charity event as a condition of attending?