Using photos of pupils for marketing purposes

Question

Is legitimate interest an acceptable basis for using photos of pupils in marketing materials, such as brochures or social media posts?

Answer

It is unlikely that a school could successfully argue that the production of publicity materials and the processing of personal data within them is necessary for its legitimate interests.

To rely on legitimate interest, the processing must be necessary – a targeted and proportionate way of achieving the purpose. Legitimate interest will not apply if you can reasonably achieve the purpose by some other less intrusive means.

The purpose here is to promote the school, and while it can be said that including images of the children furthers that purpose, it could also be argued that stock images of other children and/or images of children produced in a way that does not identify them could also meet that purpose, and would do so through less intrusive means.

In my view, it is more likely than not that the Information Commissioner's Office (ICO) would expect you to obtain consent from the individuals whose images are to appear on social media, websites or hard copy marketing material.