We recently posted our church’s soccer camp video on YouTube—showing kids and parents—and linked to it from our monthly electronic newsletter. Are we in violation of COPPA laws?
Do the same COPPA rules apply to internet streaming of church services and events? Do the same rules apply if the streaming only occurs on the various campuses of the same church?
Children’s Online Privacy Protection Act of 1998 (“COPPA”) protects certain personal information that a website collects from children under the age of 13. Personal information is defined as:
- a first and last name;
- a home or other physical address including street name and name of a city or town;
- an e-mail address;
- a telephone number;
- a Social Security number;
- any other identifier that the [Federal Trade] Commission determines permits the physical or online contacting of a specific individual; or
- information concerning the child or the parents of that child that the website collects online from the child and combines with an identifier described in this paragraph. (For more information, go to coppa.org.)
Unless the church’s online postings contain or collect personal information, COPPA does not apply.
COPPA is not the only issue arising when a church uses videos or photographs of individuals. The church may be breaching an individual’s right of privacy. Privacy laws vary widely from state to state, and the law often is unclear within a given state.
When in doubt, the church should consult with a media lawyer. Often, the church may receive a referral to a qualified attorney from a local media outlet. Unfortunately, this attorney’s guidance is often far too general to be helpful.
Each individual owns his or her likeness or other identifiable characteristic. Stated another way, each person owns his or her face. No one may use a face (or other individual identifiable characteristic) in any commercial manner.
If the church streams its services or events, stores or uses the videos or images to promote the church, or makes videos or images available on the web, then the courts will likely find that the church used the images or videos in a commercial manner. This use may create an invasion of the privacy lawsuit for the individuals whose image appears in the video or photo.
The church is responsible for all media recordings of activities occurring at church events. As a result, the church is responsible if a church representative (employee or volunteer) takes photos or videos for the church at church events. The church’s internet streaming of services and events, Sunday school teachers, and nursery workers create risk for the church.
Several exemptions may apply, which I will deal with by answering three questions.
1. Did the church shoot the video or photograph in a public place at a public event?
If the answer is yes, then the church does not need permission to take the photographs or videos. However, churches are private venues. Church events are private though the public is invited. As a result, the videos and photos shot at Sunday school or other church activities do not qualify for this exemption. An example of a public event at a public place would be the church hosting a food drive at a local park.
2. Is a well-known “public” individual featured in the activities and is the public invited?
If the person speaking or performing is famous, and the video includes the famous person’s frame, then the courts may find that the church has not invaded the famous individual’s privacy.
3. Have individuals given written consent for the church to photograph or video them
If the answer is yes, then they cannot later successfully sue for invasion of privacy. Since children cannot give consent, the parent or guardian must give written consent.
In some circumstances, the courts have found that proper notice of filming may constitute notice and consent. For example, a church posts the following on signs at all entrances:
All church activities may be internet streamed, video recorded, and photographed for church uses. Entry into any church building constitutes consent to be streamed, videotaped, or photographed for church purposes.
If the signs are conspicuous and located outside every entrance, a court may find that the church provided adequate notice to the subjects and that no invasion of privacy occurs when the church streams, videotapes, or photographs.
If the church chooses to post the signs, I suggest posting additional signs outside and inside the children’s area so that parents will receive notice of the church’s streaming, photographing, and videoing.
The best advice is to secure written consent from the parent before doing any of the above three activities involving anyone under 18. While signs may be helpful, the signs do not completely replace the need for written consent.
To protect the church from liability, the church should consider placing photos and videos in a secure area on its website. By requiring a secure login to that area of the website, the church is not making the materials available to the public. The church could issue login and passwords to members who request them.
Via software, the church should also prevent the images and videos from being downloaded, printed, or copied. Finally, the church should monitor website activity to identify potential abuse of the images and videos, such as software that circumvents the restrictions on downloading, printing, or copying.
Response based on applicable authority as of November 8, 2019.