FOR IMPORTANT UPDATES ON COVID-19, NEW YORK STATE ANTI-HARASSMENT TRAINING REQUIREMENT AND NY SICK LEAVE LAW, CLICK HERE.
Educational institutions have seen an increase in the amount of complaints they receive from students, parents, and teachers regarding unauthorized recordings at school. A few years ago, complaints of this nature seemed unimaginable. Now, almost every student has a camera with audio and video capabilities right at his or her fingertips. As young people continue to become more attached to technology, it seems almost second nature to pull out a cell phone and take a recording of something, regardless of the setting or subject of the video.
Recently, recordings made by students, both video and audio, have been viewed negatively by the press. However, the ability to record one’s surroundings can be seen positively as well, depending on how the videos are being used. Where some students may use the recordings to harm or bully, others may use them to review material or assist a classmate.
Students Recording Students
Some of the most situations students record at school are physical and verbal altercations between other students. Generally, students will upload these videos to the Internet, where they then go viral and spread to thousands of viewers.
Aside from the hurtful words or acts of violence depicted, the most disturbing aspect of these recordings is the amount of bystanders. It seems as though onlookers are more concerned with getting a video or picture than helping out a fellow student.
Another common reason for students to record other students is to make fun of those in the video or picture. Videos are posted online where other students can write hurtful comments. Additionally, through the use of certain phone apps, such as Snapchat, students can edit videos or pictures by altering the appearance of the person or making inappropriate drawings on the image. This is widely viewed as a form of cyber bullying, which some, though not all, states prohibit.
Some argue that the recordings allow school administrations to identify attackers and take corrective action more readily than if they had to interview multiple students. Additionally, the videos encourage intervention and serious responses once brought to teachers and parents’ attention.
Students Recording Teachers
In addition to recording each other, many students have begun to use their cell phones to record teachers during class. These videos can be used for a variety of reasons, including the same type of cyber bullying that is seen with recordings of students. Recordings of teachers made during class, however, can be helpful for students who were unable to attend, have difficulty taking quick notes, or those who simply wish to review the material that was discussed.
Some schools offer to record the audio of a class for students who have a legitimate reason for being absent. However, this greatly differs from a teacher being recorded by a student’s cell phone. The teacher typically gives the school permission to record his or her class in advance, and therefore, knows that they are being recorded. Additionally, the teachers know that the school-authorized recordings will only be used for academic purposes and will not be distributed to those outside of the institution.
Many people are uncomfortable with the idea of being recorded by others without their permission. Unfortunately, there are few legal remedies that the subjects of these recordings can pursue. Even if a remedy is available, it is likely to be difficult to obtain.
The main claim that subjects of audio and video recordings may assert is invasion of privacy. Generally speaking, this may include claims for intrusion into an individual’s private matters, disclosing private information, publicizing the individual in a false light, or using an individual’s name or likeness for personal gain.
Invasion of privacy claims are not easy to pursue for students or teachers who are subjects of recording. Generally speaking, educational institutions, even private schools, are considered public spaces; therefore, there is no expectation of privacy. Additional elements of privacy claims may include: the material that was recorded to be seen by a reasonable person as highly offensive; the student who posted the recording would need to receive a benefit; or the student would need to know that the recording contained false information or created untrue implications.
Students and teachers who are subjects of video or audio recordings may also attempt to bring a claim for defamation, which is similar to a “false light” claim under privacy law. Requirements for defamation claims vary from state to state; however, many defamation laws require a false statement of fact, not just an opinion.
Subjects of unauthorized recording may also look for redress in state wiretapping laws. Most states are “one-party consent” states, meaning that any individual involved in a conversation may record that conversation without the other participants’ consent or knowledge. However, eleven states, including California and Massachusetts, are “two-party consent” states, which require all parties involved in a conversation to know about, and consent to, recording.
Mitigating the Issue
Most of the courses of action that subjects of unauthorized recordings can pursue are only available after an incident has occurred. While these remedies may help students and teachers find some comfort, they cannot undo the damage that has already been caused.
To help prevent the unauthorized recording of students and teachers from occurring, schools and other educational institutions will want to have detailed policies in place against the use of cell phones on school premises with specific language on audio and video recording, as well as photographing. These policies may be laid out in student handbooks and be orally given at school-related events so that students, staff members, and parents know and understand what is expected.
Schools may wish to provide teachers and other faculty members with additional training on how to enforce these policies and respond to violations.
Copyright © 2019 All rights reserved Jules Halpern Associates LLC | Attorney Advertising