The right to privacy in a public space

LISTEN: Terence Pillay chats to representatives from Childline and The Access to Justice in the podcast then read more below:

Last week I brought you the story of the Miss South Africa glove incident and looked beyond the incident to the fact that children in an orphanage were photographed and used to promote her cause. The big question that arose was: is it okay to photograph children in the absence of a parent or guardian. 

The United Nations International Children’s Emergency Fund or UNICEF was quite explicit in its position saying that the act of reporting on children or photographing them in areas like orphanages, places them or other children at risk of retribution or stigmatisation. UNICEF further said: 

1. The dignity and rights of every child are to be respected in every circumstance.
   
2. In interviewing and reporting on children, special attention is to be paid to each child's right to privacy and confidentiality, to have their opinions heard, to participate in decisions affecting them and to be protected from harm and retribution, including the potential of harm and retribution.
   

South Africa however doesn’t seem to adhere to this. My research indicates that taking a picture of a person in a public space does not require consent. Publishing pictures of a person in a public space also does not require consent. But the commercial use of a published picture of a person in a public space does require consent

However, privacy in South Africa is protected by the law of delict and the Bill of Rights, which also provides for freedom of expression. So photographing a person without their consent in an area where there is no reasonable expectation of privacy is permitted as a general rule. 

But Adeshni Naicker, the Operations Manager of Childline, and Sheena Jonker, the Head of Access to Justice an NPO which exists to provide dispute resolution and legal resources for vulnerable persons feel that consent is necessary when it comes to photographing children – more especially children in orphanages, children’s homes, places of safety and other places that would either stigmatise the child or place that child at risk if his or her identity is revealed. 

Durban attorney Reg Thomas says that our right to privacy is protected by law and one can be charged with an invasion of privacy if found photographing anyone without their consent, especially in a public space. 

He says schools, these days; even send out a consent form at the beginning of the year asking parents for permission to use images of their children in brochures, sports programmes or other material that they produce. However, in the absence of consent, you can sue anyone that publishes the image. 

How would you react if your child’s picture was published on either social or mainstream media without your permission? 

You can email Terence Pillay at [email protected] or follow him on Twitter: @terencepillay1 and tweet him your thoughts.