27 Jun 2025, 02:02

Background

The complainant, who was in New Zealand on a working holiday, was employed at a factory on a short-term basis. They consented to the company taking a photograph of them while they worked and said they thought that the photos were to be only used internally. However, two years later after they’d returned to their home country, the complainant learnt via friends in New Zealand that their photos were being used for marketing. The complainant’s photo had been used on the side of the factory, on billboards, and in shopping centres. The photo was also used in the agency’s annual report. 

The complainant was upset about this as they felt that they had not been fully informed about why their photo was being taken, and that they had not consented to the use of their image for the purpose the company had used it for.  They complained to our Office about the collection, use, and disclosure of their personal information.

The principles applying to this case

This complaint raised issues under principles 3, 10, and 11 of the Privacy Act. 

Principle 3 requires agencies to be open about the collection of personal information, telling people at the time of collection why it is being collected and how it will be used. 

Principles 10 and 11 state agencies can generally only use and disclose personal information for the purpose it was collected, and there are limits to using personal information for different purposes. 

Our approach

In this case, the agency felt it had proper consent from the complainant to use their image in the way it had, but the complainant disagreed.  Despite this difference in opinion, both parties (each were legally represented) wanted to be able to resolve the complaint. However, they hadn’t been able to before the complainant (the person in the photo) complained to our Office. 

We focus on resolving complaints wherever possible, and section 77 of the Privacy Act allows us to try to resolve a complaint without first investigating.  

We spoke with both parties who agreed to participate in our conciliation process to discuss their respective positions and try to resolve the complaint. 

Even though the parties didn’t agree on whether the complainant had consented to the use of their image in the way the company had used it, the company was genuinely upset and remorseful that the complainant did not feel they had consented. They accepted that they had caused the complainant a significant level of harm and distress.

The complainant provided psychological reports that explained they had a pre-existing mental health condition, for which they had received treatment and recovered. The evidence the complainant provided made it clear that finding out about the marketing campaign had caused a significant regression and required ongoing psychological care. 

The company apologised and agreed to review its procedures around consent for collection and use of employee photographs. It also agreed to stop using the complainant’s image and to take their picture down from their website and other platforms.  

Financial compensation was also paid, to reimburse the complainant for their legal costs, for their psychological care, and to compensate for the significant injury to feelings the complainant had suffered.

The matter was resolved, and we closed our file.