Blog homeAs long time readers know I am not a lawyer and nothing I write counts as legal advice (however I do know when I ought to be using a legal disclaimer) 
This weeks legal quote comes from New Media Age - a traditional format (physical) magazine that covers the ins and outs of mainly London based web and new media companies.
They have an article, penned by Gary Brooks, who is a senior associate specialising in privacy law at Berwin Leighton Paisner (London).
He wrote about privacy issues on social networks - in particular around photo uploading showing friends in situations such as parties etc:
The Data Protection Act (DPA) places obligations on how organisations can use and disclose personal data, and it gives people a number of privacy rights to control how their data is used. A key question is whether photographs qualify as personal data so as to be covered by the DPA….. there is no doubt that a photograph of an individual identifiable individual qualifies.
Gary suggests that users obtain friends’ permission before posting photos of them. I expect in practice this will be quite hard to achieve so will have to be “buried” into a websites terms & conditions somewhere.
OK - but how does this relate to travel websites?
I worked with one leading tour operator on a web project and as part of this project we had to undertake a legal and security audit of some proposed web based functionality. (As a side point - this audit cost more than most small tour operators would budget for an entire development - and this was just the legal bit!)
Their data protection policies were very strong - for example in accounts - if someone called to check up on a booking - they had to ensure that it was the lead passenger - not the wife or husband for example - because maybe the husband was going on holiday with “someone else” (I will leave you to imagine what I mean).
Likewise, a potential date for a holiday was deemed to be sensitive information - even though it was not yet booked. I have personally experienced a situation where an employee of a ferry operator was selling customer travel dates to burglars - informing them when people were going to be away, their home address, and when they were coming back. Not very good (and the gang was caught later)
What interests me is use of photos on a travel website. For example if you, as a company, upload a photo to your website showing a group of clients (either prearranged or just a general shot) then you must be sure that you have the permission of the people in the photographs to use their image. If you are doing a commercial photograph this is normally handled through a model release form but now, with all sorts of travel companies rushing towards letting customers upload photographs of their trips - how is this going to be policed?
What happens if a customer uploads a photograph showing, perhaps in the background, people who ought not have been on holiday? A bit like those people who take “sick days” and then go and watch a football match - only to have the camera zoom into them and be shown on national TV……
Ok - I will leave this to the lawyers….. but this looks like a looming minefield to me.
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We are a tour operator doing exactly this - i.e. we publish photos on our websites, some of which may include our clients, and we are also soon to allow our customers to upload their own photos to a social network to share with other people they travelled with.
For several years we’ve had some lines in the personal information/data protection section of our booking conditions which we put in to allow ourselves to do this. I know that what you say in your booking conditions doesn’t necessarily stand up in a court of law, but hopefully this covers us.
“Any comments, likenesses or images of you secured or taken on any of our Tours may be used by the Company without charge in all media (whether now existing or in the future invented) for bona fide promotional or marketing purposes, including without limitation promotional materials of any kind, such as brochures, slides, video shows and the internet.”
Having said that, when we take group photos, or our customers send our sales staff photos of themselves on tour, we actually normally check with them anyway before publishing the images - asking questions like this takes very little time and effort, and customers really appreciate your consideration and the fact that you’ve asked (and good impressions of course help lead to re-bookings)
I’ve known people in the past who’ve cancelled plans to visit festivals like Glastonbury, in the fear that their bosses will see them on TV - I guess people going on holiday are just going to have to be aware that they are taking a risk getting caught out by these type of photos if they’re actually skiving or meant to be elsewhere. Going from there to suing the people taking the photos, or the company publishing them seems a bit of a stretch, though who knows in this age of no-win-no-fee solicitors.
Our booking conditions only cover our own customers of course, so perhaps we just have to be careful we only put up photos that show our own travellers, and ask our social network users to do the same.