Now Press "Record" - or Not?

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An adapted version of this article was first published on March 2, 2021 by Church Law & Tax, a publication of Christianity Today.

Shouting “Amen” at a computer screen may have seemed unusual 12 months ago, but COVID-19 has changed many ministry organizations’ approach to Sunday worship, Bible studies, and prayer gatherings. More broadly, nonprofits have been forced to significantly change their board governance, staff meetings, fundraising events, membership engagement, and other program activities. To continue carrying out such activities in the pandemic’s midst, organizations have had to move gatherings from in-person to online, using platforms like Zoom, Facebook Live, or YouTube. Likewise, many employees and volunteers now work and serve remotely as the new norm, with videoconferences substituting for in-person meetings and program activities.

To what extent may nonprofits record their meetings and other activities, particularly if the recordings contain people’s images, names, voice, and other potentially sensitive information? Is doing so always legal or does legality depend on specific locations and situations? What constitutes best practices for handling live online events, video recordings, as well as related audio recordings and photographs?

As with many COVID-19-related issues, nonprofits may have answered these questions on an ad hoc basis in the early weeks and months of the pandemic, perhaps even quickly pulling together protocols for photo and video usage.

Now is an excellent time to more carefully address such important matters by developing, adopting, and implementing a formal and legally compliant video and audio recording policy. Such a policy should define when video and audio recordings may be made, identify appropriate safeguards related to consent and personal privacy, and address related considerations like intellectual property ownership and usage. Optimally, the policy should apply to both program activities and the applicable work environment, with the following key points and questions in mind.

Define permitted recordings and photography.

What will be the scope of permitted recordings? The policy should state the permissible circumstances for video, audio recordings, and photography taken during program activities. These parameters provide clear limits for a nonprofit when conducting online activities. For example, a house of worship that livestreams its worship services may want to retain all control and discretion by allowing only authorized ministry personnel to record the services.

Tip: An organization may determine that personally-shared prayer requests, confession-oriented, or other confidential statements will remain within a small group’s online discussion, with no additional posting allowed (and including requests or statements made both orally or through “chat” communications).

Tip: An organization may decide that only certain program activities may be recorded, and no other activities (e.g., staff meetings, board meetings, small groups or group studies, and children’s activities) due to related privacy and confidentiality concerns. This approach may mean the organization limits recording to only a portion of an event or program, such as recording only a church’s sermons but not any announcements, or recording only a conference’s keynote speaker address but not any discussion-based sessions.

Obtain consent.

The policy should address consent for video and audio recording for those present at the program activity. How will consent be obtained—expressly through a written waiver and release form, implied by each person’s participation, via website login protocols, or perhaps all three? An announcement at the outset of a program activity, whether oral or written, could be quite important for garnering implied consent. Adding specific waiver language to children’s program consent forms could be effective too.

Caution: It is a crime under certain state and federal laws to surreptitiously make video or audio recordings—that is, to do so while avoiding detection, such as when a person eavesdrops and records a conversation or meeting. Nonprofit leaders should avoid any secretively-made recordings, whether actual or perceived.

Tip: For events that involve some individuals meeting in person, do not assume everyone sees a camera and understands why it is present. Use program materials or signs to indicate that the event is being recorded and that a person’s presence may be considered consent, and make an announcement regarding recording, including what someone should do if they do not want to be recorded (see below).

Honor privacy.

People have legal rights of privacy to varying degrees regarding their names, likeness, and image. Privacy interests otherwise warrant respect, in practical terms. Consequently, nonprofit leaders and those who make video and audio recordings should conscientiously avoid recording material (or using recorded material) that could be perceived as invasive or too personal. For example, attendees at a live online event may or may not want to let it be known that they (or their children) were present.

To reduce potential privacy issues, avoid any camera panning on the audience, and do not publish any attendee lists. Give people an opportunity to not be seen or heard—such as through focusing only on the main speaker, giving attendees the opportunity to sit in an area that will not be shown in the video, and making clear that unauthorized recordings are not allowed. Do not allow unauthorized photos either, such as posted through the nonprofit’s website without proper protocols.

Tip: Make these applicable policy restrictions overt and clear, such as through a verbal announcement (e.g., “no recording allowed”) or written information as part of the activity (e.g., “The ____________ program is starting in two minutes. Reminder: no individual recording or screenshots are allowed.”)

Use employment-related recordings sparingly and cautiously.

Should staff meetings or other employment-related situations be recorded? This could be quite a useful tool, such as for employees who miss a training or other meeting. However, nonprofit leaders should be very careful about what gets recorded, considering questions like the following: Could such activities be unduly embarrassing, personal, or otherwise not appropriate for recording? Would workers become less candid, knowing that their words will be recorded? How long will or should recorded staff meetings be retained?

In thinking through these challenges, nonprofit leaders may determine that it is best to just utilize a blanket prohibition against any employment-related recordings. On the other hand, perhaps a limited-purpose policy may be best, such as to record sensitive discussions (e.g., an employee disciplinary conference)—but only upon express consent given by all participants. Such consent could be given at the meeting’s outset, such as with the following introduction: “This meeting is being recorded. Do you consent?”

What about board and committee meetings?

It may be helpful to record board meetings, other leadership meetings, or even organizational membership meetings, such as in case of any disagreement over what happened or to help a secretary prepare minutes. Such recording should never become a substitute for written minutes, but rather only serve as an aid.

Additionally, as with staff matters, recording a board meeting may have a “chilling” effect, inhibiting robust discussion. Imprudent or inappropriate disclosure could also be quite damaging, such as if confidential information is divulged, and therefore potentially actionable as a legal claim. For these reasons, it may be best to prohibit recording these types of activities, with accompanying announcements as mentioned above and with related prohibitions for “chat” communications.

Reduce the risk.

Recording nonprofit organizational programs and other matters could carry a plethora of benefits. But doing so also raises legal risks and practical concerns. If an organization is going to record any activities, then make sure the leaders likewise address consent, appropriate context, proper usage (including intellectual property rights), record retention, and how to address violations.

An ideal way to handle all such matters is through adopting and following a policy that promotes clear understanding, provides follow-through steps, complies with applicable law, and encourages legal compliance and best practices. A sample policy is available upon request via email at [email protected], and through Church Law & Tax’s version of this article.