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Sharing photos of others on social media? Do's and don'ts of POPIA from 1 July

CapeTalk logo CapeTalk 2021-06-17
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  • The POPIA comes into effect on 1 July
  • Social media lawyer explains when we can share photos of other people especially children, and when we may not
  • There are exemptions for journalists and those who have a professional online brand presence but the act is aimed at domestic use
a person talking on a cell phone: Copyright : Bernard Bodo / 123rf © Provided by CapeTalk Copyright : Bernard Bodo / 123rf

The Protection of Personal Information Act of 2013 will come into force from 1 July.

While most of us are eagerly awaiting this, as it will mean that our information can't be shared by companies anymore and there will hopefully be no more annoying marketing calls on our phones, this will also bring about changes to the way we do things on a daily basis, says Refilwe.

Did you know that our faces are considered to be personal information? But does this mean that we will no longer be able to share pictures where other people happen to be in the photo? Will we need explicit permission from everyone?

Social media lawyer Verlie Oosthuizen says there are exceptions regarding professionals as the POPIA Act is for domestic purposes.

People who have a social media presence and 'brand' as part of their 'business may be treated in a separate category, suggests Oosthuizen, but for ordinary people, the new law should not make a big difference.

If Mrs Jones has gone on her family holiday and just wants to post her selfie because she wants to have a memory. I don't think she needs to worry too much about the POPI Act because it is for domestic purposes.

Verlie Oosthuizen, Partner and Head of Social Media Law - Shepstone & Wylie Attorneys

But Oosthuizen says, if one is going to use anyone's personal information, one must obtain their consent or you need to have a lawful ground for processing that information.

The way that the act has been drafted is so wide that basically doing anything with any time of information relating to anything about a person could notionally fall under the Protection of Personal Information Act.

Verlie Oosthuizen, Partner and Head of Social Media Law - Shepstone & Wylie Attorneys

Refilwe asks about an example where a school or parent photographs children in a sports match. Can this be shared on the school or personal social media pages?

The school would have to make sure that they are following the act and that they have got the requisite consent.

Verlie Oosthuizen, Partner and Head of Social Media Law - Shepstone & Wylie Attorneys

She says many schools obtain consent from parents at the beginning of the school year.

Parents may also ask the school not to use their child's images because this is something that is sensitive.

Verlie Oosthuizen, Partner and Head of Social Media Law - Shepstone & Wylie Attorneys

If it is parents posting images of other adults they may not fall foul of the act she says.

However, it is better that you get consent from other parents before you post on social media.

Verlie Oosthuizen, Partner and Head of Social Media Law - Shepstone & Wylie Attorneys

And how would it work at a wedding or such an event?

That depends if the wedding photographer is posting it for business reasons or if you are posting it, and the same caveats would apply.

Verlie Oosthuizen, Partner and Head of Social Media Law - Shepstone & Wylie Attorneys

I don't think it is going to fall foul of POPIA if you are doing it in your personal capacity but a good rule of thumb is to say is it OK if I put this on Instagram. it is a bit awkward but I think people are getting more used to it. In school circles, it is more common now to ask if you can post it on social media.

Verlie Oosthuizen, Partner and Head of Social Media Law - Shepstone & Wylie Attorneys

Do parents posting day-to-day information and photos about their children infringe on privacy and the POPIA law?

It absolutely infringes on their privacy and it is something that parents are going to have to be aware of because they have been putting things up about their kids for years and years, and you may have a child in their teens who say they cannot handle that all of this information is online.

Verlie Oosthuizen, Partner and Head of Social Media Law - Shepstone & Wylie Attorneys

She suspects going forward this will become a conversation that will be more dominant between parents and children and a swing back towards privacy.

Are journalists allowed to take pictures of members of the public without their consent?

With journalism that is a specific exclusion in terms of the act but the journalist and media house has to have a code of conduct they subscribe to.

Verlie Oosthuizen, Partner and Head of Social Media Law - Shepstone & Wylie Attorneys

This would not include bloggers who are not part of the press councils or various tribunals and forums, she notes.

Are you allowed to post people's vehicle licence plates?

That is absolutely not allowed, says Oosthuizen.

WhatsApp groups count as publishing...and the defamation is there.

Verlie Oosthuizen, Partner and Head of Social Media Law - Shepstone & Wylie Attorneys

Personal information can be gathered but only for a legitimate purpose.

It is important to note that POPIA does not mean no information can be gathered - for example, personal information at a Covid registration or a security gate is allowed - but only for a legitimate purpose.

But posting about neighbours' transgression on a neighbourhood WhatsApp group is a no-no she insists - rather go and drop a note in their letterbox.

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