IMAGINE FOR A a moment that you’re on a bus with your daughter (let’s say she’s 5 years old). The bus stops and some passengers climb on. As they file past you, looking for their seats, a man goes past and, pausing, pulls out his mobile phone and takes a photograph, seemingly of your little girl. You immediately get annoyed and confront him. You tell him you feel the act is inappropriate, that you’re not comfortable with it.
He protests that he means no harm – in fact, he wasn’t taking a photo of your child at all, he was actually trying to capture a shop window display he only noticed through the bus window as he was going past. He is an interior designer, and it caught his eye – you and your child just happened to be in the shot.
He seems genuine, but you’re still uncomfortable – you don’t want your daughter’s image shared online without your permission (regardless of the reason). But what can you do about it?
The story I have just recounted happened last year to a friend of mine, and she still talks about it with horror. When she asked me what she could do, I’m afraid I wasn’t much help, because the answer is: very little.
There is no law prohibiting someone from taking a photo of your child without your consent in a public place (as long as the photo is not intimate or obscene, and the behaviour while taking it was not threatening or aggressive), and the vagaries continue when it comes to the possibility of such photos being posted on the internet.
This week a video and a photograph respectively have been brought to my attention – images of children used online to illustrate various points by individuals with no connection to the kids depicted (one was political, another to sell a product).
One of the photos, in particular, was of a class of uniformed children taken at a school. It was clear that the photo was being used without the permission of either the school or any of the children involved, but investigation proved that it had been sourced from the school’s social media account, making it – legally at least – fair game for use (I’ll come back to that point later).
The situation got me thinking about the whole issue of how we use images of our kids, and what rights the children themselves have in the interaction.
The obvious starting point in all of this is: who legally owns the photos you share online?
Once an image gets into circulation, it’s hard to get it out
It’s is quite a complex issue, and boils down to the thorny difference between ownership and license to use. When you sign up to sites like Facebook, Instagram and Twitter, you’ll find, in the terms and conditions, that while you own any photographs and images you upload, you are giving the platform provider permission to “use, copy, reproduce, process, adapt, publish, transmit, display and distribute” any of your content, including photos that you post.
Flickr, one of the most popular photo sharing websites, actually claim the right to modify your pictures. And any profit made from this usage will most certainly not be shared with you.
Think of it like this: posting pictures online is similar to parking your car in the Flickr (or Facebook, or Twitter or Instagram) carpark. The car still belongs to you, but by parking it there, you are giving the executives the right not just to drive it whenever they feel like doing so, but they can get it resprayed and have gullwing doors installed so they can rent it out to some boy racers (and not a penny of the proceeds will go to you).
And it is worth remembering that, once an image gets out onto the worldwide web, it is very hard to get it out of circulation.
Some years ago I was called to a primary school. A couple of children had started fighting in the yard. A student teacher was on duty and intervened and broke up the fight, but not before she spent a couple of minutes videoing the fracas on her mobile phone. She uploaded the video to Youtube.
In today’s school environment legal action would certainly have been taken. Schools these days have policies about how images of the children in attendance are used, and permission would have to be given by parents if an image is to go on any social media (most schools operate their own social media accounts, which is where the image I discussed earlier was found), but back then the laws around such things were even more vague.
Needless to say parents were informed, apologies were made. The video was, of course, removed.
Only it wasn’t. Years later my daughter showed me the exact same video on another website – there were numerous comments about how funny the footage was (two little girls battering the heads off one another). I made the necessary calls and had that one taken down, too.
But I have a feeling I haven’t seen the last of it.
I knew it the uploading of the footage wasn’t meant maliciously. I felt kind of sorry for the student teacher, who wasn’t a bad kid and realised very quickly that she had made a colossal mistake.
The footage may have, technically and legally, belonged to her. But those two girls also have a right to their own identities, and the uploading of the footage could have been deeply distressing to them. They should surely be in control of their personal narrative?
The child’s rights
Okay, it’s time for full disclosure: if you go on my social media pages you will find photos of my family, some of whom are children: my niece, my nephews and my grandson. All such images have gone up with the permission of their parents (because my pages are public, I’m always careful about that), but I had never really considered the child’s rights in all this. I didn’t ask the kids permission before posting.
I believe I should have and I will from now on, but I already know what they’re going to say. I’m pretty certain they will be okay with it.
Children today, growing up in a world where everyone has a phone with a camera about their person at all times, are used to having their photos taken. My grandson knew how to pose before he knew how to walk.
But is this a good thing?
Maybe we should all think a little more deeply about the images we share.
To finish, here are three things to think about before posting a photo or video online (of your kids or anyone else):
If you think images of your child have been shared without permission this website has some useful information.
Shane Dunphy is a child protection expert and author. He is Head of the Social Care Department at Waterford College of Further Education.
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