Filming and Livestreaming School Events During COVID-19 - Managing Privacy and Safety

Published
17 September 2020

Livestreaming of graduation and award ceremonies with relevant students and teachers in attendance but family and friends watching on their devices, while not the kindest option, is probably the safest approach in reducing the risk of COVID-19 transmissions.

The compromise position is demonstrated by the recent New South Wales Government ruling  on year-12-graduation-ceremonies held on or after 12 November 2020 - students can only bring two guests and the school must develop a COVID-19 Safety Plan that addresses each element of the ceremony, from the selection of venues, seating and distancing, the movement of guests at all points before during and after the ceremony, selection of COVID-19 safe musical performances, and how to safely present awards and certificates. However, there will still be some people who cannot attend (whether because it is an event in New South Wales held before 12 November or for other reasons) and livestreaming or making a video available may be used to include or extend the audience.

Filming or livestreaming school award ceremonies may be the COVID-19- safest option, however, this comes with its own set of privacy issues.

 

The Privacy Act and the APPs Requirements

Collection of Personal Information and Consent

Images of identifiable individuals in photographs or videos are treated as personal information under the federal Privacy Act 1988 (Cth). The Privacy Act establishes the Australian Privacy Principles (APPs) which set out how the school must manage personal information. Filming an award ceremony is collecting personal information, and making that film available is a use or disclosure of that personal information.

The most obvious requirement under the APPs is that there should be consent for the filming and dissemination of those images from students, attending parents/guardians, and any guests, especially those who may be making speeches or presenting awards. APP 5 requires that a collection notice is provided, wherever reasonably practicable, when personal information is being collected. The collection notice must be specific in explaining the ‘what’, ‘how’, and purpose of the collection and use, the consequences of not providing the information/giving consent, whether the school is likely to disclose the information to overseas recipients, and information about the school, contact information, and how to access its privacy policy.

 

‘Bundled Consent’ Strongly Discouraged

Collection notices regarding personal information, including images, of students, are a point of debate for many schools which prefer to rely on the initial enrolment collection form. These combine the collection of personal information for a number of different purposes into a single form, usually with the proviso at the end that “failure to provide the information [including the consent] requested may result in the enrolment not proceeding”. While this is undoubtedly efficient, this is called ‘bundled consent’ and is strongly discouraged by the federal privacy regulator, the Office of the Australian Privacy Commissioner (OAIC), as it is not sufficiently specific and does not let individuals choose which purposes they consent to and which they do not.

The OAIC website states that bundled consents should be avoided unless the request:

  • gives the individual the choice not to consent to one or more proposed collections, uses and/or disclosures of their personal information
  • gives enough information about each proposed collection, use and/or disclosure
  • informs the individual of the consequences, if any, of not consenting to one or more of the proposed collections, uses and/or disclosures of their personal information”.

 

Is the Consent of Students Required?

Another important point to remember is that the Privacy Act does not distinguish between adults and minors. This is qualified by common sense guidance from the OAIC that a school should seek the consent of the student provided the student has the capacity to consent; capacity being defined as the maturity to understand what is being proposed. If they lack maturity, it is appropriate for a parent or guardian to consent on their behalf. While it may not be practical to determine capacity on a case-by- case basis, the OAIC provides that, as a general rule, an organisation or agency may assume that an individual over the age of 15 has capacity to consent and hence their consent is required. This is particularly relevant in the context of filming an award or graduation ceremony for secondary school students, where consent at enrolment was provided by their parents/guardian when the student was unlikely to have had sufficient maturity and understanding to be able to make that call, whereas a student at a Year 12 graduation ceremony is likely to have the requisite degree of maturity.

The upshot of this is that before filming or livestreaming an award or graduation ceremony, there should be a separate collection notice sent to students and parents/guardians and guests, conforming with the APP 5 requirements, by setting out all of the purposes of the filming, who will have access to the images i.e. to whom the link will be provided, whether a recording will be made, and how it may be used in the future, the consequences of not giving consent, and the option to do so, and the possibility that it may be disseminated overseas (for example, parents or grandparents who may be overseas). For good measure it would also be appropriate to have signs at the venue advising that recording will be taking place and provide the details of a school contact person.

 

Is the Consent of Staff Required?

With respect to school staff appearing in the filming, the collection of their personal information is exempt from the application of the Privacy Act provided that this occurs in the normal course of their employment. Attending an award/graduation ceremony is likely to come within this exemption, but it would be good HR practice to consult with staff and identify and address any concerns.

 

Other Considerations

There are a number of other considerations that should be taken into account in filming the ceremony. The Victorian Department of Education and Training has provided useful guidance to schools in the ‘COVID-19 world’ in its policy on Policy on Photographing, Filming and Recording Students. Schools should consider the following when planning the filming:

  • Child safety: are there steps that need to be taken to ensure child safety, including students who may need to be awarded in a more private ceremony? The students and their parents/guardians should be consulted.
  • Who will be doing the filming? If this is to be done by an outside provider, then the contract should be specific in ensuring that the copyright to the recording is with the school. The school should ensure that the provider is unable to use or disseminate the recording except as directed by the school.
  • What exactly will be filmed or not filmed? And what should be done if something ‘bad’ happens such as someone falling off a stage or some other incident that would be better not recorded (this is especially relevant if there is livestreaming), including speeches that go awry. Giving thought to camera angles may be relevant to ensure that inappropriate footage (or people) is not caught.
  • Ensuring that COVID-19 safety precautions are in place for the ceremony including how the awards may be given out. Remember that infractions and poor role modelling will be recorded.
  • Who will be given access to the livestreaming or recording? How will this be controlled? The school is unlikely to be able to control individuals filming their own versions of the recording and posting on social media, or their use of the school’s recording if this is disseminated, however the school should provide some ‘rules’ or strong suggestions on what is/is not appropriate. This is particularly the case if something untoward occurs during the ceremony.
  • If there are politicians present at the ceremony, they may also have their own media or publicity people, who may wish to take images. The school will need to address the privacy aspects and consider obtaining consent from students and/or parents/guardians (this need not be in writing if spur of the moment) especially where there are strong political passions relating to the particular politician.
  • Will there be a fee to obtain a recording? If there is a fee this might bring the recording into the realm of the filming for commercial use, and this is turn affects the selection of music which may be performed at the ceremony.
  • If this recording is posted, will there be a capacity for comments, and how will this be moderated?

 

Conclusion

No one said this would be easy. Once all of the COVID-19 safety precautions are in place, filming of the award and graduation ceremonies will still require much more consideration and planning than needed to occur in an unfilmed event in 2019. Ensuring appropriate consents are obtained is critical, and this should be coupled with risk management: identifying the myriad ways that things can go wrong and implementing a plan to address them.

Svetlana Pozydajew

Svetlana is a Principal Consultant (NFP) at CompliSpace. She has over 20 years of experience in strategic and operational human resource management, occupational health and safety, and design and implementation of policies and change management programs. She has held national people management responsibility positions in the public and private sectors. Svetlana holds a LLB, Masters in Management (MBA), Master of Arts in Journalism, and a Certificate in Governance for not-for-profits.