Photo of Dd for sale after i said 'no'?

[StripeyChina]

Dd and I took part in a public walk today with a religious purpose.
It was photographed by some members of the public and the local paper. We were walking in a big group so it didn't feel invasive. But there was also a man there from a big photographic agency who hopped up and snapped Dd seemingly close up as we came off the route, with 'view' in the background. I asked him to crop out of pic.

I've just checked and there is a close up pic of just my Dd, full face, v identifiable. I can buy a copy for a few hundred quid. So can anyone.

Is there anything i can do?

He can take what photos he likes in a public place, but he can't sell a picture of a child without a guardian's consent. I'm amazed so many think this is A-OK.

The GdPR includes consent for personal data to be commercialised. Although you are in a public place and crowd photos are allowed if you are the subject of the photo and you object, he has to take it down. If child is under 13 he’s broken the law as that needs explicit consent before commercial exploitation (its a bit more muddy in public shots for adults- however regardless you have the right to insist on its removal- email him and say you are exercising your right to erasure under the GDPR. Whoever above said there’s no right to privacy in the UK is talking out of his/her bottom.

You can't take pictures of children without a signed release form from a parent or guardian

That is often said but it is not true. Getting a release is a sensible precaution to avoid problems later if you want to use the picture commercially, which is why many photographic agencies insist on a release, but there is no such requirement in law.

As the photo was taken in a public place where the OP cannot have an expectation of privacy there is no issue with the photographer taking the picture. The photographer owns the copyright in the image so, in theory, they can do what they like with it. However, an image of an individual is personal data within the meaning of GDPR. An image of a crowd is fine in GDPR terms, so there is no problem with the photographer refusing to crop the OP's daughter out of crowd photos. However, commercial use of an image of an individual without consent may be a breach of GDPR. So the agency may be in breach of GDPR.

Whether they have breached GDPR may depend, to some degree, on why they took the photo in the first place. If the agency supplies pictures to the media, given that it was clear to participants that the event may be reported in the local paper, there is no problem taking photos and supplying them to the media. It is unclear whether subsequent sales of an image that has appeared in the media constitute a breach of GDPR but I suspect that they don't. There may be other situations in which selling an image without consent is not a breach of GDPR.

I second the previous poster, you cannot photograph children without parental or guardians permission. Stops the perverts to some extent. Otherwise they would all be at the school sports day taking pics.

"You can't take pictures of children without a signed release form from a parent or guardian."

And that parent/guardian has to have PR for the child. A few years ago, my ex (who doesn't have PR for our son through his own choice) took DS and his younger half-siblings to be photographed for something to do with charity. Something like a number of faces, printed up onto canvas which would then be auctioned off and potentially bought by... anyone. Most of the faces were children, from what I could gather. DS was maybe 7 or 8 at the time (he's now 14), but he was adamant that he didn't want his photograph taken in the first place. I had to contact the photographer (thankfully someone I knew through friends of friends) and explain that my son didn't want to be included, that legally I'm his only parent, and I hadn't signed a release form permitting my son to be included (not that I would have forced him to take part if he didn't want to...). The photographer was horrified, apologised, removed my son's image immediately. My ex knows he doesn't have PR, but doesn't grasp the rules/law concerning photography. Fortunately, I do, having studied it in the past. If my son hadn't been so upset by the fact he was forced to have his photograph taken, I probably wouldn't have insisted his image (close ups of faces) be removed from the final compilation - but he was angry, and upset, and kept saying that he'd said "no" (which the photographer agreed with, actually). After all, it was for a good cause... But anyone could have bought a very large canvas with my son's face upon it. And that didn't/doesn't sit right with me, I'm afraid. My ex isn't remotely concerned that someone out there has images of his younger children upon it (actually, I don't even know if he's aware that our son's face isn't on it), nor that he simply got involved with a photographer on the street imploring people to allow their children to pose for him...

You can insist that your child's image be removed, OP, you just have to point out that you didn't sign a release form giving permission. Unless, of course, you did - and you're not aware of having done so. If I were you, I'd double-check anything you signed to take part in the walk. Public park or not... you have to have signed a release form for your child's image to be used.

There appears to be some conflicting advice here about photos in public and commercial use. I admit I am no expert so I'll offer no opinion. However I am amazed that the pictures are sold at over 100.00 pounds, other than a parent who would pay that?

@hidinginthenightgarden I am not sure it is helpful to suggest the OP lies?!

The local paper are really not going to charge you “a few hundred quid” for a copy of a picture they’ve printed
A tenner at most. And everything they print is available to the public for the same price. Very few people would bother buying some random mugshot

You can insist that your child's image be removed, OP, you just have to point out that you didn't sign a release form giving permission

As per my post, the law does not require a release form before taking a photo. It is a sensible precaution if the photographer wishes to make commercial use of the image but that is all. What matters is whether or not the photographer has breached GDPR. It sounds like they may have done so but it is not entirely clear.

Greyhound, this wasn’t the local oaper’s photo, it says in OP it was a “big photographic agency.”

OP should contact them and ask them to remove the image imho.

I worked for a regional newspaper fir years and getting all the parental consents for image use was a nightmare sometimes.

I don't understand how this was a close up picture if it could be cropped leaving your DD out of it?

It's not illegal to take a picture of someone even a child in a public place.... but it is illegal to sell a clear close up of someone for money without consent... so it depends on the picture? If it's just her in the picture and shes looking at the camera and it appears as a portrait of her, then he does need consent.
If he can argue that she just happens to be in a picture of something else he was photographing then he could maybe get away without it seeing as it's a public place

I’m a journalist and we are not permitted to take photos of children under16 without the permission of a parent.

Is your concern also related to the fact that it was a religious event and you have concerns about personal safety as a result?

A lot of people here are adamantly insisting that the law in what they think it should be! Prh47bridge is right. Like many things in life, you might like it to be black-and-white simple, but it's not.

As well as the GDPR there are two famous cases called Campbell (Naomi, the model) and Murray (JK Rowling's child) involving photos. In law a court would have to consider a range of factors listed in Murray before deciding that the child has a reasonable expectation privacy.

So it's wrong to say that the law always tops children being photographed by strangers, or that those photos can't be sold. It's more complicated unfortunately. Release forms exist because it's complicated. If you sign a release form you've waived any rights you had, and the photographer and agency don't need to worry. But there's actually a good chance that you don't have any rights, and that the form is just a comfort blanket.

And the policy of any particular employer or agency might well be sensible prudence on their part, but it doesn't make law which binds anyone else!

Whatever the technicalities of the law are, its not right and creepy/disrespectful especially since you said no.

Post publically on any social media he has, facebook business page etc, ask friends to, shame that cheeky fuck. I don't understand why anyone would think thats ok. I dont think its ok to do that to an adult just because you are in public, let alone a child.

If he can't respect your wishes he doesn't deserve to not be shamed publically.

this is one of many reasons why we need a privacy law.

sorry OP, I don't fancy your chances of getting anything done unless you want to be a test case.

one of my friends - an adult - had similar happen to her and did get some money for commercial use, but it didn't go as far as court.

*sorry that wasn't clear

she got some money because clearly the photographer was making money out of it and it seemed insane that a photo taken without consent could generate £1000s for the photographer and not for the unintended "model".

Really curious as to how you will get on OP, as there is so much disagreement here about what the law says. Please update us when things progress. Fwiw I’d be unhappy with this too.

I'm a lawyer- and to simplify it as much as possible, children do have a reasonable expectation of privacy in certain circumstances which is why their faces are often blurred out by the media. Unless the parents do something to remove this expectation (I.e. their parents splashing their pictures all over social media- such as many celebrities like the Beckham's), or the circumstances require that the balance falls more on the side of freedom of expression (I.e. publishing photos of a missing child), then most publishers will err on the side of caution when it comes to children.

If I were you I would complain to the website that the photo is published on asap, and ask that they remove the photo of your minor/ prevent its sale as it was taken without your permission. If they're not co-operative then you could threaten to take legal action against the website as the publisher- and hold it responsible for any republications.

@FiddlesticksAkimbo

Murray is an old case, and does not really reflect how privacy law had developed since then.

The Weller case is a much better indicator when it comes to the balancing a child's reasonable expectation of privacy.

What matters is whether or not the photographer has breached GDPR. It sounds like they may have done so but it is not entirely clear.

I cannot realistically see any way in which they haven't, only two grounds for processing, consent and LI, we can agree that consent was not provided I think.

There's an argument above that the face constitutes biometric data and protected via Article 9 (1), however I don't think that necessarily would require consent as it is manifestly made public in this situation.

So Legitimate Interest, I certainly think a photo journalist does have good grounds for processing photos of a public march, however I cannot see how Article 14 was fulfilled and I cannot see how the request could not be considered an objection to the processing.

However others views may differ, it is not clear cut, and as the ICO generally don't care much about enforcement the actual realistic chance of enforcing it would be expensive.

Though I would agree with some posters that you can't really have a reasonable expectation of privacy on a march (it's not exactly minding your own business in a public place). It's also not something that children typically are involved in and this is perhaps something the OP should consider before bringing her child on one again.

only two grounds for processing

There are six grounds for processing, although some of them clearly do not apply. The photographer may have a legitimate interest, particularly if they are taking photos for the media.

I cannot see how Article 14 was fulfilled

Article 14 is about provision of information to the data subject. The data controller is not obliged to comply with this if providing the information would be impossible or involves disproportionate effort. There are also other exemptions. So I am not convinced that the photographer has necessarily breached Article 14.

This happened to my daughter at a local gala. Close up photo on the photography agency website “for sale”. There were loads of photos of various kids and some parents I knew bought them of their kids as the photos were good. So it can be a successful way to make money.

However there are safeguarding issues around my daughters picture/ location being published and I contacted the agency as soon as I realised and it was taken down immediately. I didn’t quote any law as I didn’t know what was applicable, but I advised there were child protection issues around having my daughters image published online and politely requested it be removed promptly.

It’s hard to imagine any reputable company refusing this request.