“A student posted a video of me teaching on TikTok without my permission. What are my rights? Can I demand the video be removed?”
Individual situations can vary greatly, so a generally applicable rule may not apply in a specific circumstance. That said, we can provide you with some general guidance. The most important questions are when and where the image or video was taken, whether it has been altered in some way, and/or whether the individual who posted it can monetize it (i.e., whether it falls under commercial use).
Where and when the recording was made matters
If the image or video was taken in a public place, it was likely legal to take and post. While a student may be disciplined if their use of a cell phone to record the image violated the school’s student code of conduct or other rules, that does not necessarily mean the image or recording can’t be posted. Of course, posting a photo taken where an educator had a reasonable expectation of privacy is treated differently. An educator may be able to require removal if the recording violates a person’s reasonable expectation of privacy. The clearest example would be a recording in a restroom, where a person has a reasonable expectation of privacy. A locker room or other changing room might also be “off limits.” There can even be criminal penalties for posting photos taken without a person’s consent when there is a reasonable expectation of privacy. But there is normally no expectation of privacy in a classroom. A classroom normally counts as a public place.
Whether the recording or image was altered matters
If the image or recording has been altered, it may be considered defamatory if it were changed in a way that makes it an inaccurate recording of reality and has changed in a way that is demeaning. This is another complex and evolving area of the law. Technological advances have made it easier for images and recordings to be manipulated. If this has occurred, an educator will normally be able to demand the image or recording be removed. The educator may also have a legal claim against the individual who posted the image, though that usually requires the educator to have suffered some financial harm, such as losing their job. If the photo is copied, posting that copy could be a copyright violation.
Whether the recording or image is used commercially matters
An individual has special rights to consent before their image is used for commercial purposes, so an educator who finds their image or a recording of them is being used commercially may have additional rights to demand the posting be removed if it was posted without their consent.
Postings by the district on the district’s social media sites
Normally, a district can use an employee’s image. This would be subject to all the considerations noted above, but it is unlikely the district would post a recording or image taken where there was a reasonable expectation of privacy, post an altered image, or expect to receive monetary benefit from the recording or image.
Each social media platform has its own procedures to follow to request removal of content, so it is not possible to explain what an educator should do if they need to request content removal other than to recommend contacting the social media site.
The legal information provided here is accurate as of the date of publication. It is provided here is for informative purposes only. Individual legal situations vary greatly, and readers needing individual legal advice should consult directly with an attorney. Eligible ATPE members may contact the ATPE Member Legal Services Department. April 2021.