Can I Use Client Before-And-After Photos In Ads?

Mia runs a skin clinic in Wellington. A client has had a great result after a $780 course of treatments, and the before-and-after photos look perfect for Instagram. Mia is excited to share them, but she pauses before posting: is a thumbs-up in a text message enough?

If your business is in beauty, fitness or health, client results can be powerful marketing. They can also involve personal information, body image, health details and advertising claims, so you want to get this right before the post goes live.

The good news is that this doesn't have to be complicated. With clear written consent, careful wording and sensible record keeping, you can promote real client results while protecting your business and your clients' trust.

Can I Use Client Before-And-After Photos In Advertising?

Yes, you can usually use client before-and-after photos in advertising if you have clear consent and your advertising isn't misleading.

A before-and-after photo isn't just a nice visual. If the client can be identified, the photo is personal information under the Privacy Act 2020. If the photo suggests a treatment, programme or product caused a result, it's also part of your advertising claim and needs to comply with the Fair Trading Act 1986.

For a beauty, fitness or health business, the safest approach is to get written consent before you use the photo. This is especially true where the photo shows:

• the client's face, body, skin, scars, hair loss, weight loss or medical condition
• a transformation linked to your service, such as fat reduction, acne treatment or strength training
• anything the client might reasonably see as private or sensitive
• the client's name, social media handle, testimonial or measurements

Verbal consent can be hard to prove later. A casual message like "sure, post it" may help, but it often doesn't cover where you'll post the image, how long you'll use it for, whether you can edit it, or whether you can use it in paid ads.

A simple privacy consent form or written release is much better. It gives your client a clear choice and gives your business a record if questions come up later.

What Consent Do I Need Under The Privacy Act 2020?

You need informed consent that matches how you plan to collect, store and use the client's photos.

The Privacy Act 2020 sets out Information Privacy Principles that apply when your business collects and uses personal information. For client photos, the main ideas are straightforward: only collect what you need, be clear about why you're collecting it, use it for the purpose you explained, keep it secure, and don't keep it longer than you need.

Before you take or use the photo, tell the client:

• what photos or videos you're collecting
• why you're collecting them, such as treatment records, progress tracking or marketing
• where you might use them, such as your website, Instagram, TikTok, Facebook, Google Business Profile, email newsletters or paid ads
• whether their face, name or social media handle will be shown
• who will have access to the images inside your business
• how they can ask questions, request access or ask for changes

Be careful about bundling consent into your general terms or website terms of use. If a client needs to agree to treatment terms, that doesn't mean they have freely agreed to be used in advertising. Marketing consent should be separate and optional.

If your client is under 18, you should be extra cautious. Depending on the client's age, maturity and the nature of the photo, you may need parent or guardian consent as well as the young person's agreement. For intimate, health-related or body transformation photos, get tailored advice before using them in marketing.

Can My Before-And-After Photos Be Misleading Under The Fair Trading Act?

Yes, they can be misleading if the photos or captions create an impression that isn't accurate or typical.

The Fair Trading Act 1986 prohibits misleading and deceptive conduct in trade. That means your before-and-after advertising needs to be honest in the overall impression it creates, not just technically true in one small part.

For example, say Jordan runs a fitness studio in Christchurch. A client loses 12kg in 8 weeks while doing Jordan's programme, but the client also followed a strict nutrition plan, trained five days a week and had previous fitness experience. If Jordan posts "Lose 12kg in 8 weeks with our programme" without context, that may suggest an average client can expect the same result. That could be risky unless Jordan has evidence to back up the claim and the result is presented fairly.

Watch out for these common advertising issues:

• Lighting and angles: If the before photo is slouched and dimly lit, while the after photo is posed and professionally lit, the comparison can exaggerate the result.
• Timeframes: Say how long the transformation took if the timing matters.
• Other factors: Mention diet, exercise, home care, medication or other treatments if they materially affected the result.
• Typicality: Don't imply one standout client result is what everyone should expect.
• Editing: Avoid filters, retouching or skin smoothing that change the result you're advertising.

You should also be careful with health claims. If you're promoting a treatment, supplement, device or therapeutic-style service, extra rules may apply depending on what you're selling and the claims you make. The Advertising Standards Authority codes can also be relevant, especially for social media advertising and influencer content.

What Should A Client Photo Consent Form Include?

A client photo consent form should clearly say what the client is agreeing to, where the images can be used, and what limits apply.

A good release doesn't need to be intimidating. In fact, the clearer it is, the more comfortable your client is likely to feel. The aim is to avoid the awkward situation where you think you have permission for paid ads, but the client thought they were only agreeing to a private progress photo.

Here is a practical outline you can use as a starting point. A lawyer should tailor it before you rely on it, because the right wording depends on your services, platforms and risk profile.

1. Client Details: Record the client's full name and contact details, and confirm whether they're over 18.
2. Photos Or Videos Covered: Describe the images, such as facial skin progress photos taken on specific dates.
3. Purpose Of Use: State whether the images are for treatment records, internal training, marketing, advertising or all of these.
4. Approved Channels: List where you may use the images, including social media, your website, paid ads, printed brochures or email marketing.
5. Identification Options: Let the client choose whether their face, first name, testimonial, handle or other details can be shown.
6. Editing And Cropping: Explain whether you may crop, resize or add captions, and confirm you won't materially alter the result.
7. Time Period: Say how long you can use the images, or whether use continues until consent is withdrawn.
8. Withdrawal Process: Explain how the client can withdraw consent and what will happen to posts and ads already published.
9. No Guaranteed Payment: If you won't pay the client or provide a discount for use, say that clearly.
10. Signature And Date: Keep a signed or electronically accepted copy with your client records.

If you work with contractors, staff or agencies who manage your content, make sure they know your consent rules too. A good form won't help much if a team member uploads a client's image to a new platform that the client never approved.

What If A Client Changes Their Mind After Posting?

If a client changes their mind, pause and check the consent wording before you keep using the image.

Consent for marketing is often best treated as something a client can withdraw for future use, even if your form says you had permission when you first posted. How you respond should be practical, respectful and consistent with your privacy obligations.

Start with these steps:

1. Acknowledge The Request: Reply promptly and confirm what the client wants removed or changed.
2. Stop New Use: Don't create new posts, ads or printed materials using the image while you review it.
3. Check Where It Appears: Look at your website, social media accounts, ad platforms, email templates and scheduled content.
4. Remove What You Control: Take down or edit content on channels you manage, unless there's a clear reason not to.
5. Record What Happened: Keep a note of the request, your response, and the date content was removed or changed.

There can be limits. For example, if a printed brochure has already been distributed, you may not be able to retrieve every copy. If an old social post has been shared by other users, you may not be able to remove every repost. Your consent form should explain this plainly.

Also remember that under the Privacy Act, clients can ask to access and correct personal information you hold about them. Agencies generally need to respond to access or correction requests within 20 working days. If a request is complex, sensitive or connected to a complaint, it's worth getting tailored advice before replying.

Common Mistakes To Avoid With Beauty, Fitness And Health Photos

The biggest mistakes usually come from moving too fast: posting a great result before checking consent, context and claims.

Before you publish, run through these checks:

• Using Treatment Photos For Marketing Without Asking: A photo taken for progress tracking isn't automatically approved for Instagram or paid ads.
• Assuming De-Identified Means Safe: Cropping out a face may not be enough if tattoos, birthmarks, captions or context identify the client.
• Making The Result Look More Dramatic: Different lighting, posture, tan, makeup, clothing or filters can change the impression of the result.
• Overstating What Your Service Did: If diet, exercise, medication or another treatment contributed, don't make it look like your service alone caused the outcome.
• Using Old Consent For New Platforms: Consent for your website may not cover TikTok, paid Meta ads, influencer posts or printed flyers.
• Forgetting Your Team: Contractors, reception staff and social media managers need clear rules about what can be posted.

A simple internal process can prevent most issues. For each before-and-after post, keep a folder with the signed consent form, original images, edited final image, caption, date posted and evidence supporting any claims. If you say "visible results after 4 sessions", keep the appointment record showing 4 sessions. If you say "results may vary", still make sure the main claim is accurate and not exaggerated.

Disclaimers can help explain context, but they won't fix a misleading overall impression. If the photo does the heavy lifting and the fine print pulls the claim back, your ad may still be a problem.

Key Takeaways

• You can usually use client before-and-after photos in New Zealand advertising if you have clear consent and your claims are accurate.
• Client photos can be personal information under the Privacy Act 2020, especially where they show faces, bodies, skin, health details or identifying features.
• The Fair Trading Act 1986 means your photos, captions and results claims must not mislead clients about what your service can achieve.
• A separate client photo consent form is much safer than relying on a verbal yes or a general treatment consent.
• If a client withdraws consent, stop new use, remove what you reasonably control and keep a clear record of what you did.
• Templates can be a helpful start, but your consent form and advertising process should be tailored to your business, platforms and services.

If you'd like help with your client photo consent form, privacy processes, advertising claims or social media terms, you can reach us at 0800 002 184 or team@sprintlaw.co.nz for a free, no-obligations chat.