Legal Disclaimer

The following is for general information purposes only and should not be taken as legal advice for any particular situation. If you have a specific concern you should consult with an attorney familiar with the relevant issues in the jurisdiction in question. Since the questioner indicated they were located in the U.S., this answer assumes that to be the case.

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There are a lot of issues involved here, and any one of them may or may not be the hinge upon which a judge would rule in a case such as this. You need to consult an attorney who specializes in this area and who practices in your jurisdiction and would be familiar with the tendencies of the potential judge(s) that might hear your case were it to go to trial.

That said, there are several considerations that should be made in situations like this.

• In general there is no expectation of privacy when in a public place in the U.S. The courts have repeatedly established and confirmed that no such expectation exists under U.S. Law. Artistic or editorial use of images taken in public do not normally require a release from those pictured.

• Is the picture placed in the restaurant for a purely aesthetic function or is it being used to promote the restaurant? Even a restaurant logo printed in one corner might be enough to establish it as promotion. On the other hand, if it may be considered aesthetic in nature, there is not always the need to obtain permission from those pictured, depending on the circumstances in which the photo was taken. The key question here is, "Does the presence of this photo promote the business or merely decorate it?"

• What were the circumstances under which the photo was taken? If it was at a public event on public property there is no explicit requirement to obtain permission for artistic or editorial use. Many photographers will wisely attempt to obtain a release anyway so that the situation you have described doesn't develop later on after they have sold an image to a client for aesthetic use. Use in advertising does require a release from each recognizable individual in the photo.

• If the public event you attended with your children involved a paid admission, you most likely agreed to their policies. There may have been some fine print on the bottom or back of the ticket to the effect that by attending the event you agreed to the promoter's or sponsor's policies regarding the event. Typically the fine print includes language something like: "You may view the complete policy at (name of business/address) during normal business hours or at (web address)" Or there might have been a sign to the same effect posted at admission points.

• If you were attending a public event held on private property the situation is similar but there are some minor differences. If admission was charged, you probably agreed to the host's policies (see above). Even if admission was not charged, the property owner or promoter may have posted a sign indicating that by entering you are assumed to have agreed to their policies. Many businesses display such signs at entry points. How prominently they are displayed and how binding they are will probably become a key point of contention in any case of this nature that goes to trial.

• There have been some precedents set by courts for civil suits in which photos that are considered truthful but embarrassing resulted in rulings for the plaintiffs. In those that involved children the cases were primarily concerned with what we might refer to as "special needs" children.

As to the part of your question that asks,

What if we had been in Witness Protection or hiding from an abusive partner?

Depending on what may be deduced from the photo itself as well as how it is displayed, at the very worst the photo of your children only reveals where they were at a specific time in the past and does not necessarily reveal where they presently are. Does the way in which the photo is displayed or captioned even indicate where or when the photo was taken?

I've never been involved with anyone placed in a witness protection program, but I would assume the participants are strongly encouraged to avoid situations, such as attending notable public events, that might reveal their whereabouts. I would also assume the same would be the case for those hiding from an abusive partner.