for the ONLINE PUBLICATION of STUDENT IMAGES and SCHOOLWORK

Acknowledgements
The purpose of this document
Summary of recommendations
Background
Protecting students' privacy The need to consider the Privacy Act 1993 Privacy principles When to seek authority to publish student images or schoolwork Guidelines for obtaining privacy consents
Protecting students' copyright The need to consider the Copyright Act 1994 Copyright licenses Moral rights Guidelines for obtaining copyright authorisation
Content of material published online
Appendix 1: Draft policy and authorisation forms for schools with primary students Download the Microsoft Word version to adapt for your school Read the web version
Appendix 2: Draft policy and authorisation forms for schools with secondary students Download the Microsoft Word version to adapt for your school Read the web version

The Ministry of Education wishes to thank those involved in developing these guidelines:

• Andrew Matangi (Buddle Findlay)
• Ingrid Shouler
• Nicola Clissold (Te Kete Ipurangi)
• Vanessa Matthews and Gillian Candler (Learning Media Ltd).
  

This document is available on the Ministry of Education's websites at www.minedu.govt.nz. and www.tki.org.nz/r/governance/curriculum/copyguide_e.php. In addition, those who wish to access the guidelines in hard copy may order them free on request from Customer Services, Learning Media Ltd.

Published 2000 for the Ministry of Education by
Learning Media Limited, Box 3293, Wellington, New Zealand.
Website: www.learningmedia.co.nz

Copyright © Crown 2000
All rights reserved.
Enquiries should be made to the publisher.

Dewey number 371.3
ISBN 0 478 12893 2
Item number 12893

The purpose of this document is to assist schools in developing a policy for the online publication of student images and schoolwork.

Such publishing activities carry implications for schools, which arise from the Privacy Act 1993 and the Copyright Act 1994. Students have rights of privacy in their personal information (including their personal images) and have property rights (copyright) in their schoolwork. They are entitled to protection of these rights.

This document provides schools with guidelines for the online publishing of student images and schoolwork. The following section is a summary of the Ministry of Education's recommendations; the remainder of the document provides:

• the background which established a need for these guidelines;
• explanations of those aspects of the Privacy Act 1993 and the Copyright Act 1994 that schools should consider when publishing students' images and schoolwork online;
• a suggested policy for schools with primary students for the online publication of student images and schoolwork;
• a suggested policy for schools with secondary students for the online publication of student images and schoolwork

This document refers generally to "schools". Many of the guidelines and recommendations contained in this document relate directly to operational issues relevant to teachers and principals. However, ultimately the board of trustees of a school is legally responsible for the conduct of its school, including the operation of the school's website.

The Ministry of Education strongly recommends that each school adopt an online publication policy that addresses the implications of publishing students' images and schoolwork online. In particular:

1. Schools with primary students should obtain the written consent of each student's parents or legal guardians before publishing any information about the student (including photographs) or any of the student's copyright material on the Internet.



2. Schools with secondary students should obtain the written consent of the student as well as that of the student's parents or guardians (if the student is aged under 20 years) before publishing similar information or material on the Internet.



3. These consents should be sought for each student upon enrolment or, for students already enrolled, when the issue of publication first arises for that student.



4. A school needs to exercise prudent judgment and common sense before publishing a student's material on the Internet. Firstly, the school should check that they hold the student's/parent's consent before publishing the student's material online. Secondly, publication may have legal consequences. As publisher, the school needs to ensure the material does not infringe copyright, does not defame, is not objectionable from a human rights point of view, and is not obscene.

Draft policies for schools with primary and secondary students are attached as appendices.

Schools use a range of learning technologies to enhance student learning. These include electronic mail (email) and the Internet. From time to time, schools wish to publish material on their own Internet websites and third party websites for a range of purposes, including:

• for educational purposes;
• to share the results of learning within the school community;
• to promote the school within the wider community.

The material schools publish may include examples of students' schoolwork and images of individual students and groups of students.

Students have rights of privacy in their personal information (including their personal images) and have property rights (copyright) in their schoolwork. Students are entitled to the protection of these rights, and schools should take steps to ensure that they comply with any relevant laws. Schools should be especially concerned to safeguard any privacy rights the students may have and to ensure they do not breach students' copyright in the artistic or literary works they produce.

These guidelines address the implications of online publishing under the Privacy Act 1993 and the Copyright Act 1994.

The need to consider the Privacy Act 1993
Internet websites can be accessed by anyone with an online connection. Material published is effectively made available to the world at large. In recognition of this, schools should take steps to safeguard the privacy of their students and to comply with the Privacy Act 1993 when publishing online.

The Privacy Act defines "personal information" as any information about an "identifiable individual". The Privacy Act does not cover information that does not identify any specific individuals.

A student's drawing or story alone is not personal information about a student and therefore is not covered by the Privacy Act. However, if the drawing or story is accompanied by any information that identifies the student, such as their name, age, and school, then the whole work may become personal information that is covered by the Privacy Act. Even if the work is not accompanied by information that identifies the student, the content of the work may mean that it is capable of identifying the student and as a result, the work may be personal information under the Privacy Act, for example, a self-portrait or a story about the student's family.

Photographs of a student are personal information about that student and are covered by the Privacy Act.

Privacy principles
As schools will be well aware, the Privacy Act sets out several Information Privacy Principles governing the collection, use, and disclosure of personal information.

Under Principle 1, the school may not collect information about a student (including photographs or videos) unless it is collected for a lawful purpose connected with a function or activity of the school and the information is necessary for that purpose. Accordingly, it is essential that schools first communicate to students and parents all the purposes for which this information is collected. The Ministry considers that the range of purposes for collecting such information as photographs and schoolwork includes those of:

• educating the student in accordance with the national curriculum, including on the role and use of technology in society;
• encouraging the student to be part of the school community;
• promoting the school in the wider community.

Principle 2 of the Privacy Act requires that the school must collect information from the relevant student unless the student authorises collection from elsewhere.

Principle 3 of the Privacy Act sets out specific guidelines about the collection of personal information. The school must make sure that the person from whom the information is being collected is aware of:

• the fact that the information is being collected;
• the purpose(s) for which the information is being collected (see above);
• the intended recipients of the information;
• the school's name and address;
• the individual's right of access to, and correction of, the information.

Principle 9 requires that schools should hold personal information for no longer than is required for the purposes for which the information may lawfully be used. In this case a student's material should not be published online after the student leaves the school permanently.

Principles 10 and 11 address the school's ability to use and disclose the information. The basic rule is that information may only be used or disclosed in connection with the purposes for which it was collected (there are some exceptions) or, otherwise, with the permission of the person who is the subject of the information.

For example, this means that in order to use a photograph of a student on the Internet, the school must have:

• taken the photo for a lawful purpose connected with the function of the school, such as encouraging students to be part of the school community or promoting the school in the community;
• informed the student about the collection of the information, as outlined above.

When to seek authority to publish student images or schoolwork
A school may publish a student's photograph on its website without obtaining the student's (or parent's) authorisation under the Privacy Act, if the photograph was taken for a lawful purpose connected with the function of the school (such as promoting the school in the community) and the student knew that was one of the purposes of the photograph being taken.

Nevertheless, the Ministry considers it is prudent for schools to seek authorisation for any and all uses of the images of students and their work in terms of the Privacy Act. Owing to the nature of publication on the Internet, there are an unlimited number of people worldwide who could view the photograph or other material identifying the student. Of particular concern is the possibility that people or organisations that may harm students could access the school's website or link to the website from an objectionable site. Schools need to be aware that there is no way the school can stop a third party website from creating a direct hypertext link from its site to the school's Internet website.

Guidelines for obtaining privacy consents
Schools deal with this type of issue on a regular basis, and the Ministry suggests that, in relation to privacy consents, schools should adopt the same procedures that they use with respect to issues such as permissions for students to go on class trips. The Ministry recommends the following guidelines:

1. Information collected about a primary student is only published on the school's or another organisation's website with the authorisation of the student's custodial parent or guardian.


2. Information collected from a secondary student should only be published with the consent of the student and his or her custodial parent or guardian.


3. Information collected from a secondary student will not be published where the custodial parent or guardian has authorised the publication but the student refuses.


4. Information collected from a secondary student may be published without the parents' consent if:
   (a) the student has consented, and
   (b) the school is satisfied that the student is competent to give that authorisation, and
   (c) the best interests of the student favour publication.
   

It is not practical to obtain authorisation from a student's parents every time the school wishes to publish a photo featuring the student on its website. It is probably sufficient to have one authorisation for each student in the school that covers the entire period the student is enrolled at the school. This could be obtained either when a student first enrols at the school or when the issue arises for the first time with a particular student. The authorisation form should be accompanied by the school's policy on privacy and the publication of information on the Internet.

The authorisation form should include the following information:

• the way in which the school uses the Internet, including a description of how it is used to educate students;
  
  
• the purpose of publishing photographs of the students and their work on the Internet;
  
  
• any additional websites that the school wishes to authorise to publish the material (such as The Online Learning Centre - Te Kete Ipurangi, a New Zealand website that acts as an online education resource on behalf of the Ministry of Education), and why;
  
  
• a brief statement about the nature of publication of this material on the Internet, that is, the fact that there are no limits on who may view or copy the material;
  
  
• the nature of the material that may be published on the Internet, that is, images (including photographs) of the students at school as well as their drawings, paintings, or writing;
  
  
• a brief outline of the school's obligations under the Privacy Act 1993;
  
  
• the school's policy about the information disclosed about students, for example:
  - students will only be identified by first name and year;
  - the school will not disclose any student's surname, home address, or telephone number(s) over the Internet;
  
  
• the school's policy on seeking authorisations;
  
  
• the fact that material will not be published without the necessary authorisation and that the student's legal custodial guardian (and/or the student where appropriate) may withdraw his or her authorisation at any time;
  
  
• direction of any further questions about the policy to the school's privacy officer.

The need to consider the Copyright Act 1994
Schools often wish to publish on the Internet original material that students create at school, including artwork and text material such as stories, poems, and other literary work. Material such as this, created by students, attracts protection as copyright works under the Copyright Act 1994. The students each own the copyright in their own artistic and literary works. Schools do not own the copyright in students' schoolwork unless it is legally transferred to the school. Schools cannot publish these works on the Internet without authorisation in the form of a copyright licence from the students. Otherwise, schools are infringing the copyright in that material.

Copyright licenses
A school may publish a student's work on its website if the student grants the school a licence to do so. A non-exclusive licence would be sufficient for this purpose. The licence may be oral or in writing. The Ministry considers it preferable for all such licences to be in writing. The copyright licence could be incorporated into the same authorisation form that is used to obtain authorisation under the Privacy Act for the use of personal information about the student on the school's website.

Moral rights
A person (the author) who creates a copyright work has "moral rights", and that includes student authors. Briefly these rights are:

• the right to be identified as author ("Paternity");
• the right to object to derogatory treatments of the work ("Integrity").

The following points should be noted about the "right of Paternity":

• The author of an artistic work has the right to be identified as author whenever the work is exhibited in public (for example, on the Internet).
• The author of a literary work has the right to be identified as author whenever the work is published commercially (for example, on the Internet).
• Any reasonable form of identification may be used.
• A person who fails to identify the author will not infringe the right of Paternity if the author has not "asserted" his or her right to be identified in accordance with the Copyright Act.

Given the complexity of the law relating to moral rights and their limited practical scope in relation to students, it may be better for schools not to address the issue of moral rights directly with parents and students. Instead, the school could simply include, as part of its guidelines on publication of material on the Internet, a statement that every work belonging to a student will be identified by the student's first name and year at school only.

In the rare event that a student or his or her parents do raise the issue of the right to be identified, it should be dealt with on a case by case basis. Obviously, if a student or his or her parents insist on full identification of the student as author, this will be at the expense of the privacy of the student.

The "right of Integrity" is intended to protect the integrity of an author or artist by preventing certain derogatory treatment of their work. An author's right of Integrity is infringed if an alteration to, deletion from, or adaptation of the author's work would be "prejudicial to the honour or reputation of the author".

It is unlikely that issues of breach of this right would arise very frequently. Nevertheless, the safest course for schools is not to alter or adapt any student's work before publishing it on the school's website. This guideline should be included in the schools' policies. This is not to suggest that all students' work should be published. Schools must exercise considerable judgment when publishing anything on their websites.

Guidelines for obtaining copyright authorisation
The copyright authorisation form should include the following key points with respect to copyright:

• a brief explanation that a student owns copyright in any original works they create and that the school has an obligation to obtain a licence before copying or publishing the works on its website;
• the actual licence/authorisation;
• the fact that the school welcomes any enquiries the parents or students have about the school's policy.

Material published on Internet websites without password or other secure access is accessible by anyone with an online connection. Material on websites is effectively published to the world at large. The published material is in a digital form and can be copied and downloaded by third parties very easily. Schools cannot prevent third parties linking their websites to the school's website.

Accordingly, the Ministry makes the following recommendations regarding students' images and schoolwork that schools publish on their websites:

• Images of students should not attract or arouse prurient interest. For example, schools should use discretion in publishing images of students who are not fully clothed.
  
• Students' schoolwork should be subject to an editorial vetting process by schools before being published online. As operator of the website, the school is acting as publisher or disseminator and must be aware of its potential liability for:
  
  - defamation (for example, a student's statements about teachers or parents that may damage their reputation),
  -publishing racist or obscene content,
  -infringing the copyright of third parties (for example, a student's inclusion, in his or her work, of substantial portions of copyright material without consent)

Attached for the assistance of schools are draft policies for primary and secondary students and forms of authorisation covering both privacy and copyright issues. Schools wishing to use or adapt these policies and forms may download them in Microsoft Word format.

Appendix 1: Draft policy and authorisation forms for schools with primary students (in Microsoft Word format)

Download the Policy for the online publication of student images and work in Word format.

Download the Parent permission for the online publication of a primary students image and work in Word format.

Appendix 1: Draft policy and authorisation forms for schools with primary students (in Web format)

Purposes of online publishing
The school uses a range of learning technologies to enhance student learning. These include electronic mail (email) and the Internet. From time to time, we publish on the school's Internet website ([INSERT WEBSITE ADDRESS]) material for educational purposes, to share the results of learning within the school community, and to promote the school within the wider community. This may include examples of students' schoolwork and images of students and groups of students in activities at the school. Images of students may include scanned, digital, or video images of them taking part in school or class activities.

There are three main reasons the school publishes student material online:

to educate the student in accordance with the national curriculum, including on the role and use of technology in society;

to encourage the student to be part of and participate in the school community;

to promote the school in the wider community.

 

Privacy and online publishing
Parents and students should be aware that the school cannot control who has access to the information published on its Internet website or the other websites mentioned. In recognition of this, the school takes steps to safeguard the privacy of the students and to comply with the Privacy Act 1993.

Copyright and online publishing
The school also wants to publish original material that students create at school, including artwork, such as drawings and paintings, as well as stories, poems, and other literary work. Original material created by students attracts protection under the Copyright Act 1994. The students own the copyright in their own artistic and literary works. The school will not publish the works on the Internet without authorisation in the form of a copyright licence from the students.

Given the age of the students, the school has decided that it will not publish online any image of a student or work they have produced without the written permission of each student's legal guardians.

School management of online publishing
The school will set the educational purpose for publishing students' work online. A student's image and schoolwork may be chosen for online publication if it meets this purpose and if the school holds the consent of the parent to publish the student's material online. The material chosen must also meet the standards required for the website on which it is to be published.

For example, if the student's schoolwork is to be published on the school website, it must not: defame anyone, be objectionable from a human rights point of view, be obscene, or infringe the copyright of third parties (for example, the work must not contain substantial portions of another person's copyright material without permission).

If the material is to be published on another website, such as Te Kete Ipurangi - The Online Learning Centre, then it must meet the publishing standards of that website.

Permission sought by the school
The permission the school seeks is:

• authorisation to publish the student's personal image or work online as required by the Privacy Act, and
• a licence to publish any copyright work of the student online.

Enquiries
The school welcomes any enquiry from parents or students about the operation of this policy and has a designated privacy officer to discuss enquiries about students' privacy.

The school's privacy officer is:
[INSERT NAME AND CONTACT DETAILS]

Disputes
The school has a procedure to resolve complaints or other disputes. This procedure is contained in [SPECIFY WHERE DISPUTES PROCEDURE IS LOCATED].

Parent permission for the online publication of a primary student's image and work

Appendix 2: Draft policy and authorisation forms for schools with secondary students (in Microsoft Word format)

To download the Policy for the online publication of secondary students images and word in a word format.

To download the Secondary student and parent permission for the online publication of a student's image and work in a word format.

Appendix 2: Draft policy and authorisation forms for schools with secondary students (in Web format)

[Name and Address of School] POLICY for the ONLINE PUBLICATION of STUDENT IMAGES and WORK

 

Purposes of online publishing
The school uses a range of learning technologies to enhance student learning. These include electronic mail (email) and the Internet. From time to time, we publish on the school's Internet website ([INSERT WEBSITE ADDRESS]) material for educational purposes, to share the results of learning within the school community, and to promote the school within the wider community. This may include examples of students' schoolwork and images of students and groups of students in activities at the school.

Images of students may include scanned, digital, or video images of them taking part in school or class activities.

There are three main reasons the school publishes student material online:

• to educate the student in accordance with the national curriculum, including on the role and use of technology in society;
• to encourage the student to be part of and participate in the school community;
• to promote the school in the wider community.

Privacy and online publishing
Parents and students should be aware that the school cannot control who has access to the information published on its Internet website or the other websites mentioned. In recognition of this, the school takes steps to safeguard the privacy of the students and to comply with the Privacy Act 1993.

Copyright and online publishing
The school also wants to publish original material that students create at school, including artwork, such as drawings and paintings, as well as stories, poems, and other literary work. Original material created by students attracts protection under the Copyright Act 1994. The students own the copyright in their own artistic and literary works. The school will not publish the works on the Internet without authorisation in the form of a copyright licence from the students.

School management of online publishing
The school will set the educational purpose for publishing students' work online. A student's image and schoolwork may be chosen for online publication if it meets this purpose and if the school holds the consent of the student and his/her parent to publish the student's material online. The material chosen must also meet the standards required for the website on which it is to be published.

For example, if the student's schoolwork is to be published on the school website, it must not: defame anyone, be objectionable from a human rights point of view, be obscene, or infringe the copyright of third parties (for example, the work must not contain substantial portions of another person's copyright material without permission).

If the material is to be published on another website, such as Te Kete Ipurangi - The Online Learning Centre, then it must meet the publishing standards of that website.

Permission sought by the school
The permission the school seeks is:

• authorisation to publish the student's personal image or work online, as required by the Privacy Act, and
• a licence to publish any copyright work of the student online.

Enquiries
The school welcomes any enquiry from parents or students about the operation of this policy and has a designated privacy officer to discuss enquiries about students' privacy.

The school's privacy officer is:
[INSERT NAME AND CONTACT DETAILS]

Disputes

The school has a procedure to resolve complaints or other disputes. This procedure is contained in [SPECIFY WHERE DISPUTES PROCEDURE IS LOCATED].

Secondary student and parent permission for the online publication of the student's image and work.