Photos of students routinely appear in school district newsletters and on district websites and district Facebook pages. To publicize events and student achievements, many districts furnish photos of students to external media such as local newspapers, television stations and specialized publications such as On Board . Is parental consent required before a school district can take a student's photo, publish it or share it with news media? What laws apply? What school policies make sense?
No right to privacy
There is no common-law right to privacy in New York. In other words, there is neither a statute nor a well-defined body of judicial decisions that would give a person a right to claim an injury if his or her photograph is taken and published without his or her consent. An exception involves commercial use of photographs, however. Under sections 50 and 51 of the New York Civil Rights Law, it is a misdemeanor to use a person's portrait or picture “for advertising purposes” or “for the purposes of trade” without that person's permission (or the permission of a parent or guardian, if the subject of the photograph is a minor). What qualifies as an “advertising” or “trade” purpose has not been clearly defined by the courts.
An individual whose photo has been used in violation of the law can seek money damages (N.Y. Civ. Rights Law §51). Fortunately for news media and other disseminators of news (which can be school districts, bloggers and even individuals who use Twitter), courts in New York have carved out an exception to this portion of the statute if the publication's content is considered “newsworthy” or of “public interest.” If the images qualify under this exception, the statute provides no remedy for individuals who is photographed without consent.
What is considered newsworthy or in the public interest has been broadly construed by the courts. This exception has been applied to reports of political and sporting events, social trends and news stories. Whether an item is newsworthy depends upon the content itself, not the publisher's motive.
Another relevant law is the federal Family Educational Rights and Privacy Act (FERPA) ( (20 USC § 1232g et seq., see also 34 CFR Part 99 ) which provides parents with certain rights regarding their child's records. Under FERPA, schools that receive funds from the U.S. Department of Education may disclose a student's “directory information” without consent, and directory information may include a student's photograph. However, schools have an obligation to notify parents about directory information and allow a reasonable time period for parents to inform the school if they do not want their child's information disclosed. Parents may be notified through a special letter, newspaper, student handbook, or through any other public medium that the school chooses ( (20 USC § 1232g(a)(5)(A), (B); 34 CFR §99.3).
What about websites and Facebook?
Increasingly, school districts have been using student photographs on district websites and via social media such as Facebook. Courts within New York have not directly addressed whether images of students on a district website or a district Facebook page fall under the above-referenced exception, but it's likely that courts would not treat electronic media any differently than print publications.
While legal decisions involving use of student photographs are rare, one case did reach New York State's highest court, the Court of Appeals. It involved a 14-year-old girl who consented to a magazine photo shoot and found her image used to illustrate an advice column with the caption “I got trashed and had sex with three guys.”
In Messenger v. Gruner + Jahr Printing & Publ'g , (94 N.Y.2d 436 ), the court held in 2000 that a magazine company was not liable under sections 50 and 51 of the state Civil Rights Law, even though the parents of the minor had not given their consent. The court noted that when a photograph bears a real relationship to a newsworthy article, and is not an advertisement in disguise, there is no cause of action under the statute. The court further held that the minor's images, regardless of any false implications, qualified as “newsworthy” because they were posted in an article that was informative and educational.
Based on this ruling, it is hard to imagine a school district being held liable for money damages for failing to obtain a parent's permission prior to publishing a student's photograph in district publication or on a district website or district Facebook page. Photos of students taken within a classroom or at school events would be matters of public interest because they constitute significant events. The photos would meet the test articulated in Messenger , since there is a real relationship between the photos and the school's purpose of publishing them, and the images are not advertisements in disguise. Additionally, as in Messenger, schools would only be posting students' images for informational and educational reasons. Schools therefore are not obligated to obtain consent from a parent or guardian before taking and posting images of their students on their website.
Similarly, school sporting events would be considered newsworthy. In 1952, the Court of Appeals held in Gautier v. Pro-Football, Inc. (304 N.Y. 354), that an individual's right to privacy was not invaded under the state Civil Rights Law when he was televised during a professional football game. The court held that the football game was a newsworthy, public event and therefore the plaintiff was not entitled to relief. The court also noted that actual participants and spectators do not have an absolute right to privacy at public events.
This case supports the conclusion that students, regardless of whether they are players or spectators, will not have a valid privacy claim if televised. As such, television networks are not required by this statute to obtain consent from a parent or guardian.
School policies vary
As noted previously, school districts are not required to obtain parental consent prior to posting images of students on their websites or in their newsletters. However, many school districts in New York have some form of parental consent requirement. The New York City Department of Education has adopted perhaps the strictest policies regulating the content placed on a school's web page. Under the department's Internet Acceptable Use Policy, schools must obtain written parental consent prior to disclosing students' information or work on any web page. Types of information requiring consent include a student's photograph, writing, or creative work.
New York City schools also have a specific policy forbidding school web pages from displaying photographs or videos of any identifiable student without a signed release form from a parent or guardian. Furthermore, all requests from outside media sources to film, photograph, or interview students, must be approved by the Department's Office of Communications and Media Relations and by the school's principal. Once approved, the media organization must receive a release form signed by a student's parent or guardian.
Other school districts in New York State have developed policies that are less stringent and less burdensome on administrators. One district's policy states that all athletic, recreational, and special events after the school day do not require parental permission prior to any media coverage. This policy is consistent with the Gautier case because these events are considered public and newsworthy. The district's policy also states that if parents or guardians do not wish for their child to speak with the media, it is their responsibility to instruct their child accordingly.
Another school district's policy only requires parents or guardians to sign a media release form if they object to the school using their child's photograph for the school's internal purposes, yearbook, or outside media use. Parents should be notified of this “opt out” requirement as per FERPA through any reasonable method. Some school districts include this notification in a district calendar that is sent home to parents. Others include information on the district website or send the notification home to parents separately. As stated above, the notification must be reasonable.
Some school districts have chosen to have different policies based on grade level. One district's policy completely bans photographs of students in grades K-8 from appearing on the district's website, regardless of parental consent. Students in grades 9-12 may be photographed with the consent of a parent or guardian. If the photograph does not clearly identify the student, the photograph may be published regardless of a student's grade level.
Recommendations for school policy
School districts should promote publishing student photographs and accomplishments on their websites, Facebook pages and publications. An educational purpose is served because these media are often used to promote student expression, confidence, and creativity. Sharing information, including photos of students, can foster positive relationships among educators, parents, students and community members.
Although parental consent or release forms are not legally required, and districts that publish “newsworthy” photos of minors are not subject to financial liability even if parents object, having some form of parental consent policy can avoid misunderstandings. Policy options include, but are not limited to: (1) An “opt-in” policy. The school board can mandate that written consent be obtained from a parent or guardian before images are taken or published, (2) An “opt-out” policy consistent with FERPA. Under this policy, district personnel can publish images of students as long as parents are notified that photographs are considered directory information under FERPA and have a reasonable opportunity to opt-out. The opt-out policy set out in option two provides the least administrative burden. Schools using an opt-out policy, however, run the risk of having parents claim that they were not aware of the potential use of their child's image.
It is increasingly important for school districts to protect themselves as technology becomes more accessible and easy to use. As technology expands, the potential for liability often expands with it.
Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Michael D. Raniere, an associate at Jaspan Schlesinger LLP, with the assistance of law clerk Lindsay Feuer.