What to do if strangers take photos of your kids in a public space

Another day, another child trafficking scare.

The most recent rumour doing the rounds on Facebook is about a group of men cruising Cape Town beaches and taking photos of girl children aged around three years old.

See the post going viral here

As a mom of of particularly photogenic kids (if I say so myself), I'm no stranger to tourists and even random locals taking a chance with their camera. My husband and I have had to jump in front of my daughter, too many times, and sternly ask the offending photographer to refrain from snapping, or to delete pics.

So far, all of these unlicensed paparazzi have appeared to realise they're in the wrong, and either scuttled off with an apology and/or deleted any pics right away. And that's just if we see it happening. 

We never had any reason to fear them as human traffickers building a menu, but speak to any parent and it is clear that this is a legitimate fear. 

Whether or not that sketchy tourist is taking photos of your adorable kid for nefarious purposes, it really is best to try to avoid having photos of your kids out in the world, out of your control.

So what to do if you suspect someone taking of a photo of your kids? What can you actually do about it? 

We asked the legal team at LAW FOR ALL to answer some of these pressing questions:

Are there any laws protecting children against strangers taking pics of them without permission? 

Our laws allow for anyone in a public space to take photographs, as long as the action of taking photographs in that public space is not prohibited.

Parents are, by law, the natural guardians of a child and are enabled by law to make decisions on behalf of the child, if it is in the best interest of the child. Although one may argue that once you are in a public space, you have waived your expectations of privacy by being there and there is no express law that prohibits the photographing of children, section 28 our Constitution states that child's best interests are of paramount importance in every matter concerning the child.

This is also echoed in the Children's Act, as well as in case law and common law. The Constitution makes provision for the right to privacy, which can be enforced where one feels that their right is being infringed upon.

In this case, while the law allows you to photograph children in public, you will need to stop immediately when confronted with any objection as the right to privacy may be enforced if at any point one may feel that it is being infringed upon.

The only time consent is expressly required, is where the photograph will be used for commercial gain.         

Can parents approach strangers and ask that the pics are deleted? 

As the natural guardian of the child, parents are enabled by law to make decisions that are in the best interests of the child. Parents are also enabled by law to grant, deny and/or revoke consent for anything that relates to the child, including the child’s right to privacy.

You may not invade someone’s privacy (taking of a photograph without consent may be an example of this), once the person voices a desire to enforce their right to privacy, non-compliance results in transgression.

Therefore, the parent is well within their rights to request for the picture to be deleted.                         

What if the stranger tries to get away/refuses to delete the pics/denies taking photos? 

Should the stranger try to get away, refuse to delete the pics or deny taking photos, it’s advisable to call any law enforcement to assist with the matter. 

As long as the photograph was taken in a public space, there is no assumption that the stranger has broken the law in any way, and there is no obligation on the stranger to explain her/himself. 

Although one may feel that their right to privacy has been infringed on, it is still for the court to decide whether the right has indeed been infringed upon.          

Can parents alert the police? 

If the parents believe that the photograph taken has infringed on the child’s rights, is not in the best interests of the child and/or the stranger has committed a crime, they are well within their rights to call the police.                         

Can parents press charges? What would the charges be? 

The parents may approach the police to lay a criminal charge against the stranger. The parents may open a case for crimen injuria.

Crimen injuria is a crime under South African common law, defined as the act of unlawfully and intentionally impairing the dignity or privacy of another. 

The parents may also pursue a civil claim for damages; however, the parents must take into consideration that in as much that the right to privacy is protected by the Constitution and the law of delict, the stranger is also protected by the Constitution thanks to the right to freedom of expression.

The court would need to decide based on the evidence brought forward by the parties to the matter. 

Just say, a parent forcefully took a stranger’ s camera/phone and searched it for photos, could they get into trouble with the law?        

The parent is not permitted to do this by law. There is no legal obligation on the stranger to show the parent the photograph; the photograph is legally the property of the stranger. 

Should the parent physically harm the stranger or damage their property (the camera), the stranger reserves the right to take lay a criminal complaint against the parent.

It is in the parent’s best interests to alert law enforcement, rather.

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