Is sharing a photograph or video of a client or student online unethical?

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A recent conversation with a colleague led me to explore the question “Is taking a photograph or video of my client and posting in on my business’ social media page or website an ethical or even a human rights violation?”

I thought this would be a quick post to write, but boy was I wrong. My initial research led to three weeks of more research, more questions, more avenues to explore, and a much deeper understanding of the dangers and complexities of sharing photos and videos online. I know this is a long one, but I encourage you to read the whole thing.

What should we consider before sharing?

Ethical photography and video recording is conditional, meaning that it may be okay to photograph and record individuals you work with under certain circumstances. For example, it may be quite appropriate to create a permanent product of work samples or challenging behavior for use as a comparison at some later date to demonstrate effectiveness of an intervention or as a record of progress (or lack thereof). It may also be appropriate to take photographs and record individuals to make materials that you will use during your instructional or therapy sessions, to create decorations for your classroom or therapy center, or to make mementos (like year book photos). Assuming that the photographs and recordings were taken using equipment owned and operated by the school or agency (not on personal phones), were stored securely (not on personal computers or personal cloud storage accounts), and separate consent  was obtained for each use of the photos or recording, there would likely be minimal risk and many benefits to using photos and recordings for these purposes. In addition, by keeping the photos and videos “internal” it decreases the risk that the photos and videos will end up being used in a way in which consent was not obtained for.

“Sharing” refers to the act of uploading content via the internet (pictures, sound bites, recordings, documents, images, etc.) to show others. Common forms of sharing (at the date of this publication) are adding content to a social media site, a website, a blog post, an email, a text, or providing access to a content in a cloud storage folder. Often times, people have a false sense of security because social media groups are labeled “closed” or “private,” or cloud storage folders are password protected. Content that is shared under these circumstances are as vulnerable as content shared publicly because print screen and screen recording technology allows viewers to copy content and potentially redistribute it.

Professionals must always question whether or not taking and posting photographs any reason is ethical and professionally necessary, but when posting online, you must also ask yourself “Can I guarantee that once shared, the content will only be used in the way that permission was obtained for?” Unfortunately, the answer at this time is always no. Therefore, prior to sharing any content, including photos and videos, regardless of whether or not you have consent you must consider whether or not you are okay with the fact that you have no control over what others do with that content once it is shared.

I have no control over what others do with the content once it is shared. Now what?

You can use the following questions to help you make a decision about what to share online and if you are doing everything you can to protect your clients/students.  This list is my own, and there are other questions that may be helpful. This exercise is designed to help identify serious weaknesses in the arguments for sharing client/student pictures and videos online, not to provide legal or professional advice. I have provided relevant resources throughout to help you think through these questions. This is NOT a complete list of resources and I may not include some statements from relevant documents that may be included elsewhere. You should read these documents as part of this process and if you discover a serious breach or have concerns, I recommend you speak with a representative of your professional organization and/or your liability insurance provider.

As always I am available to chat and talk through an issue. If I think you could use additional guidance I will make sure to point you in the direction of people who can help you. I look forward to your feedback on this one.

1504469_10203162352447956_1993833596_oAll my best-

Adrienne

adrienne@abacnj.com

 

 

Informed Consent:

  • Do I have a signed informed consent form that describes why I am and taking this photo or video and what I intend to do with it?
    • “Behavior analysts, making public statements or delivering presentations using electronic media do not disclose personally identifiable information concerning their clients, supervisees, students, research participants, or other recipients of their services that they obtained during the course of their work unless written consent has been obtained” (BACB, 2014).
    • “Social workers should obtain clients’ informed consent before audiotaping or videotaping clients or permitting observation of services to clients by a third party” (NASW, 2008).
  •  Are the benefits and risks of sharing the content online outlined in my informed consent form?
  • Have I included a statement regarding my/our inability to guarantee that the content will not be used in an inappropriate way once shared via the internet.
  • Have I provided separate consent forms for website use, social media use, electronic transmission, and every other intended use for the photos and videos?
  • Do I issue an updated consent to share media/content online form annually?

Privacy, Confidentiality, and Security

  • If I have consent, are the pictures or video taken  and stored in a secure way, a HIPAAFERPA compliant way, and/or a way that protects my client’s confidentiality? Check out the Security Risk Assessment Tool
    • Behavior analysts must not share or create situations likely to result in the sharing of any identifying information (written, photographic, or video) about current clients and supervisees within social media contexts” (BACB, 2014).
    • Psychologists respect the dignity and worth of all people, and the rights of individuals to privacy, confidentiality, and self-determination” (APA, 2010/2017).
    • “NCCs who use digital technology (e.g., social media) for professional purposes shall limit information posted to that which does not create multiple relationships or which may threaten client confidentiality” (NBCC, 2016).
    • “Nurses must not identify patients by name, or post or publish information that may lead to the identification of a patient. Limiting access to postings through privacy settings in not sufficient to ensure privacy” (NCSBN, 2011).
    • “Social workers should protect the confidentiality of clients’ written and electronic records and other sensitive information. Social workers should take reasonable steps to ensure that clients’ records are stored in a secure location and that clients’ records are not available to others who are not authorized to have access” (NASW, 2008).
  • Have I ensured that geotags are not attached to the photo or video I am sharing, or that the sites I am posting the content to strips geotags from the content. (What is a geotag?!).
  • If I take a picture or make a video recording of a client or student does it becomes a part of that individual’s client record file and if so, am I out of compliance if I share personal identifying information online?
    • “Education records are records that are directly related to a student and that are maintained by an educational agency or institution or a party acting for or on behalf of the agency or institution. These records include but are not limited to grades, transcripts, class lists, student course schedules, health records (at the K-12 level), student financial information (at the postsecondary level), and student discipline files. The information may be recorded in any way, including, but not limited to, handwriting, print, computer media, videotape, audiotape, film, microfilm, microfiche, and e-mail” (Family Policy Compliance Office, n.d.).

      From Privacy Rights Clearinghouse (2015) “Privacy in education: Guide for parents and adult-age students” 

    • Under FERPA, education records consist of “anything directly related to a student” that is maintained by an educational agency or institution. According to FERPA, as supplemented by the Department of Education’s regulations, information directly related to a student is “personally identifiable information.” This includes:
      • The student’s name and address as well as the name and address of parents and family members.
      • Personal identifiers such as Social Security number or student number.
      • A list of personal characteristics or other information that would make the student’s identity easily traceable.
      • Indirect identifiers such as the student’s date or place of birth and mother’s maiden name.
      Amendments to FERPA regulations effective January 8, 2009, add “biometric record” as a personal identifier. Examples of biometric records include fingerprints, retina and iris patterns, voiceprints, DNA sequences, facial characteristics and handwriting.

      Also from Privacy Rights Clearinghouse (2015) “Privacy in education: Guide for parents and adult-age students” 

    • Can my child be videotaped or photographed at school without my permission? FERPA does not have a provision regarding videotaping of students. However, once a videotape or photo is created and kept by the school, it becomes part of the student’s education record and is protected under FERPA. In addition, depending on who is conducting the taping or photography and for what purpose, other protections may be granted under the Protection of Human Subject federal “common rule,” discussed further in Part 7 on surveys below. (45 CFR Part 46) For more on Protection of Human Subjects, see the Department of Education Web site: www.ed.gov/about/offices/list/ocfo/humansub.html
    • “The psychologist maintains records in such a way as to preserve their confidentiality. The psychologist develops procedures to protect the physical and electronic record from inadvertent or unauthorized disclosure (see Guideline 5). Psychologists are familiar with the ethical standards regarding confidentiality, as well as state and federal regulations and statutes (e.g., HIPAA, licensing laws, mandated reporting of abuse). Psychologists strive to be aware of the legal and regulatory requirements governing the release of information” (APA, 2007).
  • Have I stored the photograph or video in a way that protects against unauthorized access?
    • “NCCs shall protect the confidentiality and security of tests or assessments, reports, data, and any transmission of information in any form.” (NBCC, 2016).

Benefit and Risks to my client

  • What benefit does posting the picture or video offer to the individual or individuals in the picture or video? 
    • “Social workers’ primary responsibility is to promote the well-being of clients.” (NASW, 2008)
    • “Psychologists strive to benefit those with whom they work and take care to do no harm” (APA, 2010/2017)
  • Is there a potential for harm if I share a video of a vulnerable individual “for training purposes” that may expose that individual’s weakness in decision making or social relationship skills and putting them at risk for exploitation?
    • “The mentally retarded person has a right to protection from exploitation, abuse, and degrading treatment.” (The General Assembly, 1971)
    • “Social workers act on behalf of clients who lack the capacity to make informed decisions, social workers should take reasonable steps to safeguard the interests and rights of those clients” (NASW, 2008).
  • If an individual is an adult but is not competent to sign a consent form, should a legal guardian or parent consent to allow for that person’s likeness to be posted online as a photograph or in a video?
    • “Psychologists are aware that special safeguards may be necessary to protect the rights and welfare of persons or communities whose vulnerabilities impair autonomous decision making” (APA, 2010/2017).
    • “Social workers act on behalf of clients who lack the capacity to make informed decisions, social workers should take reasonable steps to safeguard the interests and rights of those clients” (NASW, 2008).
  • Is there a potential for harm when I ask a parent or guardian to provide consent to share a picture or video online that depicts the minor engaging in potentially embarrassing or upsetting behavior? Did I inform the parents and guardian of the potential risk of harm to the minor when they find out that the content was made available with little consideration to how they might feel that content is available on the internet?

Other ethical and/or legal considerations

  • Is asking for consent to use pictures of current client receiving intervention/treatment for fundraising or marketing purposes akin to asking current clients to give a testimonial which is strictly forbidden by many professional organizations?
    • Behavior analysts do not solicit or use testimonials about behavior-analytic services from current clients for publication on their webpages or in any other electronic or print material.” (BACB, 2014)
    • NCCs shall not solicit testimonials from current clients or their families or close friends (NBCC, 2016).
    • Social workers should not engage in solicitation of testimonial endorsements (including solicitation of consent to use a client’s prior statement as a testimonial endorsement) from current clients or form other people who, because of their particular circumstances, are vulnerable to undue influence (NASW, 2008).
    • Psychologists do not solicit testimonials from current therapy clients/patients or other persons who because of their particular circumstances are vulnerable to undue influence (APA, 2010/2017).

Staff Training

  • Are my staff aware of how sharing pictures or videos of and/or naming clients or students on their personal social media pages, twitter, and via email or text is a breach of confidentiality and a serious ethical, professional, and human rights violation?
    • “Behavior analysts using electronic media (e.g. video, e-learning, social media, electronic transmission of information) obtain and maintain knowledge regarding security and limitations of electronic media in order to adhere to this code” (BACB, 2014).
  • Are my staff trained to protect personal identifying information of students/clients, in what they can and cannot share with others, who they are allowed to share information with, how best to transmit client/student records electronically, and to keep client records secure?
    • When the psychologist employs clerical or testing personnel, he or she is required by the Ethics Code (Standard 2.05) to take reasonable steps to ensure that the employee’s work is done competently. Therefore, the psychologist strives to educate employees about confidentiality requirements and to implement processes that support the protection of records and the disclosure of confidential information only with proper consent or under other required circumstances (e.g., mandated reporting, court order) (APA, 2007).
    • “NCCs shall act in a professional manner by protecting against unauthorized access to confidential information. This includes data contained in electronic formats. NCCs shall inform any subordinates who have physical or electronic access to information of the importance of maintaining privacy and confidentiality” (NBCC, 2016).
  • Do I provide training on an annual basis?
  • Have I asked my staff to sign a confidentiality agreement and outlined the consequences for inappropriate sharing of client or student photos, videos, or other personal identifying information?

Alternatives for fundraising, marketing, branding, training, or any other reason for sharing photos or videos online:

  • Use confederates or models in your pictures. For example, use staff to model how a procedure is done with other staff members in videos and pictures.
  • Take a totally different approach to your brand and reconsider how photos and video are used to support your brand.
  • Post pictures and videos of children collected 5-10 years ago so that the children in the photos are no longer children and are no longer identifiable.
  • Hide or blur the individual’s face, bleep over the use of the person’s name if possible and blur a person mouth when they say the person’s name, and never post personal identifying information with the photo or video.
  • Use stock photography, but keep in mind that there may be limitations to how you can use the photos. For example, Shutterstock, a popular stock photography online retailer includes the following statement in there Terms of Service and License Agreement
YOU MAY NOT:

Portray any person depicted in Visual Content (a "Model") in a way that a reasonable person would find offensive, including but not limited to depicting a Model: a) in connection with pornography, "adult videos", adult entertainment venues, escort services, dating services, or the like; b) in connection with the advertisement or promotion of tobacco products; c) in a political context, such as the promotion, advertisement or endorsement of any party, candidate, or elected official, or in connection with any political policy or viewpoint; d) as suffering from, or medicating for, a physical or mental ailment; or e) engaging in immoral or criminal activities.

References

American Psychological Association (2007). Record keeping guidelines. American Psychologist. Retrieved From http://www.apa.org/pubs/journals/features/record-keeping.pdf

American Psychological Association (2010/2017). Ethical principles of psychologists and code of conduct. Retrieved from http://www.apa.org/ethics/code/

Behavior Analyst Certification Board (2014). BACB professional and ethical compliance code for behavior analysts. Retrieved from http://bacb.com/wp-

Family Compliance Office (n.d.). FERPA frequently asked questions: General. Retrieved from http://familypolicy.ed.gov/faq-page/12#t52n214

National Association of Social Workers (1996/2008). Code of ethics of the National Association of Social Workers. Retrieved from https://www.socialworkers.org/pubs/code/code.asp

National Board of Certified Counselors (2016). National Board for Certified Counselors (NBCC) Code of ethics. Retrieved from http://www.nbcc.org/assets/ethics/nbcc-codeofethics.pdf

National Council of State Boards of Nursing (2011). A nurse’s guide to the use of social media. Retrieved from https://www.ncsbn.org/NCSBN_SocialMedia.pdf

Privacy Rights Clearinghouse (2015). Privacy in education: Guide for parents and adult-age students Retrieved from https://www.privacyrights.org/consumer-guides/privacy-education-guide-parents-and-adult-age-students

Shutterstock (2016). Terms of Service: Shutterstock License Agreement(s). Retrieved from https://www.shutterstock.com/license

The General Assembly of the States Members of the United Nations (1971). Declarations on the Rights of Mentally Retarded Persons. Retrieved from http://www.ohchr.org/EN/ProfessionalInterest/Pages/RightsOfMentallyRetardedPersons.aspx

US Department of Health and Human Services (HHS) The Office of the National Coordinator for Health Information Technology (2016). Security Risk Assessment (SRA) Tool Administrative Safeguards Content. Retrieved from https://www.healthit.gov/providers-professionals/security-risk-assessment-tool

 

Other readings:

Haelle,Tara (2016) Do parents invade children’s privacy when the post photos online? NPR Shots. Retrieved from http://www.npr.org/sections/health-shots/2016/10/28/499595298/do-parents-invade-childrens-privacy-when-they-post-photos-online

National Association of Social Workers and Association of Social Work Boards (2005). NASW & ASWB standards for technology and social work practice. Retrieved from http://www.socialworkers.org/practice/standards/technology.asp