I’ve had a few queries recently about the recording of Christmas performances to share with parents and the data protection implications of this.
So, here are some things to consider data protection wise:
- Where will the recording be stored? Will it be kept in a suitably secure way?
- How long will the recording be kept for? This shouldn’t be longer than is necessary.
- Who will it be shared with?
- How will you keep pupils or parents informed?
- What lawful basis will you rely on?
Choosing a Lawful Basis
Many schools look to use consent as their lawful basis for the recording and sharing of these performances and I understand why.
However, from a data protection perspective this could present you with subsequent problems and is therefore, not the most appropriate lawful basis to rely on in my view.
Consent
When using consent, it must be as easy to take away as it is to give and withdrawal of consent can happen at any time.
This presents a problem if a parent/pupil changes their mind after the recording is made and shared. You would need to stop sharing the recording, unless you have the technology to pixilate the child’s image, and then the recording is not going to be quite the same!
There is also the argument that it is not a genuine, free choice for parents/pupils because, without consent, presumably pupils will not be able to take part in the performance, so it could be said this is ‘forcing’ parents/pupils to say yes.
The Lawful Basis of Legitimate Interests
An alternative lawful basis that could be used would be the one of ‘legitimate interests’. Using this would mean that you did not need to seek consent.
If any parents/pupils had concerns about the recordings these could be addressed on a case by case basis and hopefully the person would be reassured. However, the parent’s/pupil’s concerns (interests) wouldn’t automatically override the school’s interests so you would not be required to stop sharing the recording, for example, if someone subsequently expressed concerns.
Openness and transparency are key parts of the principles within the GDPR, so it would still be important to let parents/pupils know what you are intending to do and why, that you are relying on the lawful basis of legitimate interests, and asking them to contact you if they have any concerns.
Concerns
Some concerns have been expressed about being unable to prevent parents making the recording available to others, whether this is through the onward sharing of a link or by downloading/recording their own copy. This would be classified as personal use which doesn’t actually fall under the GDPR. However I understand schools may have safeguarding concerns about this.
I am not a safeguarding expert, but from a purely data protection perspective, I think the risk to the rights and freedoms of the individuals involved is likely to be low. However, I agree that schools should be clear with parents/pupils about their expectations around sharing when informing them about the recordings.
Legitimate Interests three-part test
To use legitimate interests there are 3 key elements we need to satisfy – the so-called three-part test. The elements are purpose, necessity and balance of interests:
- Purpose test: there is a clear purpose – it is about parents/carers being about to see, and share in, the performances this year
- Necessity test: it is necessary, otherwise parents/carers are not going to be able to see the performances
- Balancing test: is the legitimate interest of your school/trust overridden by the individuals’ interests, rights or freedoms? I don’t think it is given what you are trying to achieve.
Note: If you have already chosen to rely on consent this year, please don’t worry, I think it is going to be unlikely you will encounter problems. Perhaps consider whether you wish to use legitimate interests next time.
Finally, to meet the principle of accountability, keep a record of your considerations.
Then, only one thing remains – to have much joy with your Christmas performances!
This type of advice is inclusive in the DPO Service I am providing. If you would like to know more, please get in touch.