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Laws Regarding Posting Your Child in Care's Photograph on Social Media

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on Tue, 05/10/2016 - 21:38
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Laws Regarding Posting Your Child in Care's Photograph on Social Media

Western Australia

Just looked the Section 237 of Children and Community Services Act in Western Australia, here it as follows:-

CHILDREN AND COMMUNITY SERVICES ACT 2004 - SECT 237
237 . Restriction on publication of certain information or material

(1) In this section —

old order means an order under the repealed Child Welfare Act 1947 committing a child to the care of the Department or placing a child under the control of the Department;

publish means to bring to the notice of the public or a section of the public by means of newspaper, television, radio, the Internet or any other form of communication.

(2) A person must not, except in accordance with a written authorisation given under this section, publish information or material that identifies, or is likely to lead to the identification of, another person (the identified person ) as —

(a) a person who is or was a child the subject of an investigation referred to in section 32(1)(d); or

(b) a person who is or was a child the subject of a protection application or an application for an old order; or

(c) a person who is or was a child the subject of a protection order or an old order; or

(d) a person who is or was a responsible person under a responsible parenting agreement; or

(e) a person who is or was a child the subject of a responsible parenting agreement.

Penalty: a fine of $12 000 and imprisonment for one year.

(3) If the identified person is under 18 years of age, written authorisation for the publication of information or material to which subsection (2) applies may be given by —

(a) in the case of an identified person referred to in subsection (2)(a), (b) or (c) — the CEO; or

(b) in the case of an identified person referred to in subsection (2)(d) or (e) — each authorised CEO (as defined in section 131A) who entered into the responsible parenting agreement.

(4) If the identified person has reached 18 years of age, written authorisation for the publication of information or material to which subsection (2) applies may be given —

(a) by the identified person; or

(b) if the identified person is dead or cannot be found after reasonable inquiries, by —

(i) in the case of an identified person referred to in subsection (2)(a), (b) or (c) — the CEO; or

(ii) in the case of an identified person referred to in subsection (2)(d) or (e) — each authorised CEO (as defined in section 131A) who entered into the responsible parenting agreement.

(5) Subsection (2) does not apply to information or material contained in a report of proceedings to which the Children’s Court of Western Australia Act 1988 section 35(1) applies.

 

New South Wales

The Internet has become a popular communication tool for children and young people, as well as adults, businesses and organisations. There are a range of reasons why people or organisations might wish to publish images of people online, including for recording, documenting and advertising or for promoting an organisation's activities and experiences.

Organisations involved with children and young people, such as sporting and performing arts groups, often include photos or visual recordings of children and young people on their websites to promote their activities or services. Many children and young people also share images of themselves and their friends on social networking websites such as Facebook, and on their own blogs and web pages. The accessibility of the Internet and the increasing popularity of social networking sites for both young people and adults has made the sharing and disseminating of images very easy. This has resulted in concerns about the safety and welfare of children and young people online, and protection of their privacy.

This Resource Sheet provides information about safety and good practice when images of children and young people are displayed online. It outlines the legal obligations for Internet users who post images of children and young people on the Internet, and some of the emerging issues associated with the displaying of online images by children and young people. Guidance is also provided for supporting children and young people to be safe online. Throughout this paper, a child or young person refers to a person under the age of 18 years.

Legal issues

There are laws and classification regulations that should be considered when publishing the image of a child or young person on the Internet.

Privacy laws

There are Commonwealth privacy laws relevant to the unauthorised production and publication of a person's image through the Privacy Act 1988 (Cth). These laws regulate the publication of personal information that conveys the identity of a person or allows their identity to be determined. Under the Privacy Act 1988 (Cth)section6, "personal information" refers to:

Information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

This means images of children that would enable them to be identified - for example, in a school uniform, outside their house, or showing their name - should not be published on the Internet without the consent of both the child and their parent or guardian. Establishing protocols for obtaining parental/guardian and child consent is good practice regardless of whether or not images contain identifying information about the child or young person.

Obtaining consent

An example of how consent might be obtained would be for the publisher to have a standard consent form available for a parent or guardian to sign. The form should explain the reasons for acquiring and displaying the image and how the visual material will be published.

It is good practice to also seek the child or young person's consent to ensure that their privacy is not breached. Although the Privacy Act does not stipulate an age when a child or young person can make decisions about their own personal information, there are precedents that support the capacity of young people to make decisions about their personal information, such as the ability of young people to obtain their own Medicare card from 15 years of age (Australian Law Reform Commission, 2008). Furthermore, the United Nations (1989) Convention on the Rights of the Child recognises the right of children to freedom from interference to their privacy and the right to express their views in matters that affect them.

Some organisations have their own privacy policies in terms of obtaining consent when publishing images of children and young people online, and when determining what age a young person can provide their own consent. Rather than setting a specific age, the policies may outline situations or examples on a case-by-case basis of when it would be considered appropriate for a young person to be able to provide consent themselves.

When obtaining consent from a young person to publish an image, the consent process should be explained in plain language that a young person could easily understand. Informed consent may be verbally obtained from a child or young person while in the presence of their parent or guardian.

Child protection legislation

There are also laws that protect the identity (e.g., names and images) of children and young people involved in child protection, family court, or criminal proceedings as victims or offenders. For instance, in New South Wales, it is an offence to publish identifiable material of a child who is involved in the Children's Court or a non-court child protection proceeding under the Children and Young Persons (Care and Protection) Act 1998. This means additional efforts should be taken to protect children or young people who are, or have been, subject to child protection, family court or criminal proceedings so that they are not identified in relation to legal matters. These laws are particularly pertinent in relation to media coverage of children's issues. For example, a story about children in out-of-home care that includes a photo of a child or young person should not identify them as a foster child if the young person is less than 18 years of age at the time of publication.