6 Privacy and image consents
Introduction
Privacy
Australian privacy law is a mixture of state and federal regulation. In Victoria, universities are regulated by the Privacy and Data Protection Act 2014 (Vic) and must comply with the 10 Information Privacy Principles (IPPs). The IPPs cover the use of personal and sensitive information. Personal information includes names, addresses and even images or videos of people. The goal for organisations is to be transparent about the use and disposal of personal information and to obtain informed consent for the collection, use, storage and transfer of this information.
For the MUL open textbooks, privacy was raised in the initial meetings with authors and was a constant consideration throughout the writing, editing and publishing process. Each open textbook had to address varying levels of privacy risk. The greatest level of privacy protections sought were for images of people, including students, children and Indigenous authors.
Images or film of people
There are two issues with adding or adapting images or films of people for an open textbook. The first is to obtain copyright permission from the creator of the material and the second is privacy.
The copyright owner of a photograph is the photographer, not the person in the photograph. The person who directs and/or produces a film is the copyright owner, not the participants in the film. Therefore copyright permission must be obtained from the photographer, director or producer, as described in the Copyright chapter.
But people in photographs and in film do have privacy rights. If authors use images or film of real people, privacy permission is required from the people represented in the work. If people who appear in an image or film are not identifiable, then privacy permission is not required. For example, if there are people in the background of a film, but they are blurred and cannot be identified, then permission from them would not be required.
In some cases, authors may have images or film with permissions but want to reuse them in a new or adapted work. Since the footage was originally taken for another purpose, the permission may not cover publishing in an open textbook. In such situations, a risk management approach would be to obtain new permissions, clearly setting out the scope of the new use. For example, an author may already have permission to use a photograph of a person in their research, but the permission may be unclear as to whether it allows the research to be published or published open access under a Creative Commons license.
Before images or film containing identifiable people were published in the MUL open textbooks, fresh permissions or consent forms were sent to all participants. These new permissions made it clear that their images could be reused by readers of the open textbook. MUL staff or the authors contacted participants to explain how this could impact their personal privacy with the possibility of reuse. Where consent could not be obtained, material was not used or images or participants were blurred out. For example, footage of a Zoom meeting was blurred so participants could not be seen.
Authors and people whose images are being used have to be aware of the possibility of reuse, even in a way they may disapprove of. This must be set out clearly in discussions with the authors and with participants and should be part of the process of signing the image consent form.
One MUL open textbook included author headshots. These were made available under a CC BY-NC-ND licence, a more restrictive license than the CC BY-NC license applied to the rest of the book. The intention was to protect author privacy and restrict inappropriate use of the headshots by not allowing derivative works to be made from the headshots.
Student privacy
If authors want to use material collected from students, such as assignments or other types of assessments, or images or videos of students, in an open textbook, privacy must be considered. Written consents or permissions should be obtained with the scope of the use clearly set out so the student knows exactly how their material will be used. If the use expands or changes, fresh permissions or new consent agreements need to be obtained.
It is possible that students will not want their name attached to a piece of work in an online publication. In these cases, anonymity might be a way of preserving privacy. Another option could be to include student names as contributors, so they get credit for their help, but not specify which piece of work is created by a particular student, so it is a more collective contribution (Mays, 2017).
Ethical issues with the potential imbalance of power between authors and students should be carefully considered when deciding what material to include in the open textbook. If the author is in a position of authority over the student or is assessing the student’s work, this could create a situation where the student feels pressure to grant permission to use their material, images, or film of themselves. If authors want to use student material, they need to be aware of these ethical and legal issues, and the situation must be handled in an informed and sensitive way.
For one MUL open textbook, photographs of students were proposed. After discussions with the authors and the students, the photographs were altered to be more abstract. The students were shown the final images in which they were harder to identify. They were more comfortable signing consent forms to use these digitally altered images.
Images or film of children
Images or film of children used in any textbook requires the consent of the appropriate parent or guardian with the authority to sign on the child’s behalf. For an open access textbook, it is even more important to explain to the parents or guardians that the images will be accessible online for reuse. This should be made clear in any consent form they sign. The parents or guardians may wish to place restrictions on reuse or not use Creative Commons licensing. One way around this might be to redraw the images or make them blurred, making it harder to identify specific children.
In one of the MUL open textbooks, images of children reading and playing were redrawn from photos so that the images were not easily identifiable. Guardians were then more willing to grant permission to use the images in the open textbook.
Images of Indigenous peoples
When considering using images of Indigenous peoples in an open textbook, cultural protocols must be consulted. All the ethical issues around exploitation and cultural appropriation should be explicitly worked through. Appropriate permissions that cover all these areas should be used. For more information, refer to the AIATSIS Guidelines for the Ethical Publishing of Aboriginal and Torres Strait Islander Authors and Research from Those Communities [PDF, 1.2 MB]. Additionally, case studies such as Reimagining Open Textbooks Through a Decolonising Lens: Non-Linear Practices for Holistically Integrating First Nations Knowledges into Curriculum, provide an in-depth exploration of developing culturally safe open textbook projects.
One MUL open textbook had photos of an Indigenous co-author. The MUL team worked with the editors and not the co-authors, so addressing this issue directly was challenging. The authors decided to make the chapter available under a CC BY-NC-ND licence to prohibit derivative works made of the chapter and the images within it. This would help protect privacy and prevent distortion of the images. New signed privacy consents from the authors were obtained.
Summary of privacy and image consent issues
- When using images of people in an open textbook, authors need specific image consents from each person or their guardians. This is different to copyright permission from photographers, artists or film makers.
- Even where authors may have obtained permissions to use those images previously in their research, this permission may not be specific enough to allow reuse in a Creative Commons licensed textbook. New permissions or image consents may be needed.
- Special consideration needs to be given to the sensitivity and ethical issues when using images of students, children, or Indigenous peoples. Consents must be properly informed with consideration of risks of reuse and exploitation.
- In some cases, it may be appropriate to redraw photos, blur images, or remove parts of images where informed consent is not obtainable or if the risks of misuse are seen as too great.
References
Mays, E. (2017). Privacy & Anonymity. In E. Mays (Ed.), A guide to making open textbooks with students. The Rebus Community for Open Textbook Creation. https://press.rebus.community/makingopentextbookswithstudents/
Office of the Victorian Information Commissioner. (n.d.). Overview of privacy. https://ovic.vic.gov.au/privacy/
