What can schools do to protect teachers from sneaky recordings of digital homeschooling?

At a time when digital homeschooling is the standard (for now), many new situations and challenges regarding privacy arise. For example, it is not only important to ensure the privacy of students, but also that of teachers. With digital home schooling, there is not always visibility into student behavior. This can eventually result in undesirable situations, such as secretly recording lessons and then distributing them on the Internet.

Thus, it is very important to take measures through which teachers' privacy can be protected. With that in mind, the advice is to establish rules of conduct or guidelines that address digital homeschooling. These rules of conduct could include, for example:

• students are prohibited from making recordings of classes they attend online, and that obviously the distribution, editing and/or sharing of images on the Internet and/or social media is not allowed at all;

• students are prohibited from taking screenshots of videos and chats with teachers and other students;

• only students themselves may attend classes, and listeners are in principle not wanted just as in a regular class;

• the regular rules of conduct (which apply to physical education) also apply to digital homeschooling.

Furthermore, students should be well aware of these rules. It is therefore recommended that teachers make these rules clear at the beginning of each lesson and show (a summary of) the rules of conduct/guidelines to students. It is also recommended that these rules/guidelines be included in the student charter. Teachers may additionally do well to, for example, record separate instructional videos and also bring these to the attention of parents, which may make students (and their parents) less likely to secretly record lessons.

Relevant legislation

When publishing/publishing recordings on social media, it is also important to look at the General Data Protection Regulation ("AVG"). It is indicated by the Personal Data Authority ("AP") that individuals in photos or videos are almost always identifiable, making the AVG applicable. (1)

Article 2(2)(C) AVG provides that the AVG does not apply to the processing of personal data "by a natural person in the course of purely personal or household activity." It is indicated by the AP that this exception only applies if (2):

• a person publishes privately (and therefore not on behalf of a company);

• a person publishes for personal or household purposes only (and not for professional or commercial purposes);

• the information is visible only to a limited circle of people, such as family members or friends, where the information may not be public to everyone or, for example, to "friends of friends" on Facebook;

• the (personal) data cannot be found through search engines.

When the above cumulative conditions are met, the AVG does not apply. Although it follows from the parliamentary history that it is not always clear when the aforementioned ground for exception can be invoked in the context of social media, the person (the parent) who posted the recordings on LinkedIn or publicly or Facebook is unlikely to be able to invoke this ground for exception. In the case where a lesson is merely recorded, and not otherwise published/published, this ground for exception may possibly apply. Incidentally, recording the lesson may already qualify as processing personal data.

After all, on LinkedIn, messages are usually accessible/visible to a large group of people and can therefore also go "viral" quite easily, so the information was probably not only accessible to a limited circle. A possible reliance by the parent on the exception ground of personal and domestic use is therefore likely to fail. This means that the AVG does apply, the parent qualifies as a data controller, and there must be a basis for processing the personal data (posting the teacher's recordings on LinkedIn). This may exist under circumstances, but will not be assumed lightly given the impact a publication has on the teacher.

In addition to the AVG, other legislation may also be relevant. In 2019, in the context of unsolicited making and distribution of recordings recorded during (physical) lessons, Ministers Van Engelshoven and Slob have (3), confirmed what had previously been indicated by Minister Dekker (Legal Protection): "Unlawfully captured images, for example images that have been secretly recorded, may of course not be distributed. Action can be taken against this under Article 139g in conjunction with 139f of the Criminal Code (WvS). It is also possible for images that are lawful in themselves to be published in a criminal manner. For example, when the images are presented in such a way as to constitute a threat (Article 285 of the WvS), libel or slander (Article 261/262 of the WvS) or insult (Article 266 of the WvS). These cases can be reported to the police. If there is a criminal offense such as online threat or insult, the relevant social media company can be contacted." (4) Based on the foregoing, therefore, covertly making recordings of teachers and sharing them may even result in criminal conduct. It should be noted that a justification may exist under circumstances. After all, such cases must involve unlawful recordings.

Furthermore, a person portrayed (not on assignment) may oppose publication under the portrait right pursuant to Section 21 of the Copyright Act if he has a reasonable interest that opposes publication. The balance of interests to be made may result in the publication of photographs or recordings of recognizable persons constituting a violation of portrait rights.