Communications and Media

Child Photography or Videotaping Consent Laws

Updated by Brian Farkas, Attorney
Basically, with a few exceptions, it is actually perfectly legal for strangers to photograph or videotape your child, and they are free to post or publish the images as well.

The spread of smartphones has allowed almost anyone to upload their own media content to the Internet. This is alarming for privacy advocates, particularly with respect to children. Can someone upload images of your child to social media or a blog?

Basically, with a few exceptions, it is actually perfectly legal for strangers to photograph or videotape your child, and they are free to post or publish the images as well. Contrary to what many parents believe, they do not need to give their consent or sign a release. However, some states have passed more restrictive legislation to change this permissiveness, and school districts do take steps to protect their children.

Editorial Use Is Generally Acceptable

At first, the idea the a stranger can photograph your child without your consent and publish that image seems sketchy, at best. But the legal principle that allows publishing and circulation of photographs and video images of children is the First Amendment. The First Amendment protects both freedom of expression and freedom of the press, and prevents the federal government from passing sweeping laws that restrict these freedoms.

Consequently, as long as a photographer uses the images for editorial purposes, and if he or she took them while your child was in a public setting, the photographs are generally within the law even if you do not give your consent. An example would be a newspaper article about the condition of playgrounds in public parks; a journalist could publish a photo that includes your child playing in the public park without your consent.

Of course, there are certain exceptions. For example, if the photo or video is used for sexual or predatory purposes, this could violate child pornography laws.

State laws on this issue are shifting with the rise of social media. At least two states have considered legislation to make it illegal to photograph children without parental permission. Georgia passed a bill in 2010 that makes it illegal for anyone but a parent to photograph or videotape a child, but the law may be revised to specifically address registered sex offenders. New Jersey began working on a similar law in 2011, but the efforts seem to have stalled. State laws, though, must yield to the First Amendment; in other words, they are limited in the extent to which they can limit people from free expression, and they must be narrowly tailored.

School Districts Protect Children

States and municipalities have the right to make their own laws regarding issues such as photographing children. School districts can restrict filming and photography on their grounds and the use of images without parental consent. However, some schools might not prohibit group photos if the photographer does not identify any of the children when publishing them, or photos of certain extracurricular activities such as sporting events.

Private schools, summer camps, and other private institutions can also enforce their own policies restricting the use of videos or photographs on their premises. Because these are privately owned, the owners have greater ability than the government to prevent individuals from taking photos or videos of children.

Other Laws May Apply

Some other state and federal laws might apply if anyone photographs or films your child without your knowledge or permission. Your child has the same right to privacy as an adult does. No one can photograph or film your child in a location where he or she believes himself or herself to be alone, even if alone with his friends. For example, if the child is in a sandbox at a public park, a photographer can take his or her picture. If the child is in a sandbox in your fenced-in backyard, the photographer would be violating your child's right to privacy, as well as your own. You can use that to stop distribution of the photograph because the photographer's action is a tort, or behavior that justifies a lawsuit. You might also have a claim for trespassing.

A Children's Rights Lawyer Can Help

The law surrounding children is complicated. Plus, the facts of each case are unique. This article provides a brief, general introduction to the topic. For more detailed, specific information, please contact a children's rights lawyer.

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