Church Liability and Best Practices for Posting Photos and Videos

Many United Church of Christ Local Churches are regularly holding online worship on Facebook or YouTube, have active social media pages that include photographs and videos of worship, and maintain sophisticated websites with photographs of individuals participating in church ministries.  Some church websites have links to recordings of congregational or council meetings.  The technology that keeps us connected during a pandemic is a gift.  

Connection is critical for ministry, and in focusing on good ministry, we should also be attentive to the privacy needs of those who are attending our worship services and ministry activities.  Questions have been raised about legal liability for a church that posts photographs or videos of adults and children on its publicly available media.  This article discusses some of the ways a church may be liable for posting photos and videos of individuals without their permission, and offers suggestions for church policies that are respectful of the privacy needs of individuals. 

In today’s post, I am presuming that the church owns the photograph, meaning that a church employee took the photograph during the ordinary course of business or that the church has properly purchased or licensed the photo from the copyright owner, so I haven’t included a discussion of copyright issues that might also arise if the church does not own the photo.  If you need help understanding copyright issues, please see the following resources:

The principles discussed below are applicable to photographs and videos, even if only one category of media is mentioned specifically.

Photographs of Adults

No specific federal law prohibits posting a photograph of an individual on a website or a social media page.  (State and local laws vary widely and change rapidly; consult with a local attorney for more information.)  A church can still face legal liability for posting a photo of a person without permission.  An individual may bring several civil tort claims against a church (or other business) that uses a photo of that individual without permission.  These claims include invasion of privacy, defamation, and violation of the right of publicity.  

In an invasion of privacy claim, an individual may argue that the use of the photo unreasonably intrudes on the individual’s seclusion; appropriates the person’s likeness; unreasonably publicizes the individual’s private life; and/or places the individual in a false light.  In a defamation action, an individual may argue that the use of the photo resulted in harm to their reputation.  In a right of publicity action, an individual may argue that the photo was used for commercial purposes without their permission. 

Bringing these claims against a church is not guaranteed win for the individual.  A church will not be liable in a lawsuit simply because it posted a photo without permission.  All of these tort claims have specific elements that the individual bringing the claim must prove to win the case and to be entitled to money, called damages, from the church’s use of a photo.  For example, in a defamation action, the person bringing the claim has to prove that their reputation was harmed because the church posted the photo.   

These claims can be avoided by establishing and enforcing policies on the church’s use of photos of individuals.  The best practice is that churches should not post photos of individuals on the church’s website or social media without the individual’s permission.  Churches are not public spaces.  No church can ever be fully aware of all of the circumstances of its congregants and visitors, and some individuals may be surprised, angered, or even adversely affected by a church posting their photo without permission.  Your congregation may include undocumented individuals, those who prefer to keep their religious affiliation private for any number of reasons, and domestic abuse survivors, just to name a few examples.  A good policy is that the church will obtain the affirmative consent of any individual identifiable in a photo before posting the photo on its media, and will honor the request of any individual to have a photo or video removed from the church’s media, regardless of whether the individual consented to posting it originally.

Some churches ask members to provide a blanket consent to the use of their photos on an annual basis.  If your church has such a policy, remember that someone must be responsible for reviewing photographs and tracking who has not provided consent, and for ensuring that no photos of visitors are used.  

Some churches ask members to inform the church if a member does not consent to the church posting photos of them.  This policy may involve fewer members to track, but a member failing to opt out of consent is a weaker argument against liability than obtaining affirmative consent.  Such churches must also be aware of visitors who have not provided consent and are unaware of the church’s opt-out policy.  Some churches post notices informing participants in worship or other activities that photos may be taken and that participation is considered consent to the use of the photos.  The possibility that members or visitors may not be aware of the notice makes this a weaker argument than affirmative consent.

A church should also consider its policy on the use of cameras by members and visitors during worship.  A member might take a photo that includes another individual attending worship and then post the photo on the member’s own social media without permission of the individual in the photo.  While a church does not have an obligation to monitor its members’ social media accounts, a church can have a policy against photography during a worship service and/or ask its members to be aware that other individuals may not want to be photographed or have those photos publicly posted.  And a church should not share a member’s social media post to its own page if it does not have the permission of the individuals in the photos. 

When a church is recording a worship service for online use, notify the in-person congregation in advance that the service will be recorded and what portions of the congregation will be visible during the recording.  A best practice is to limit the visibility of the congregation.

When recording church meetings, ensure that all participants are informed that the meeting is being recorded and how the recording will be used, including whether it will be posted publicly or for internal church use.  Be aware that links to videos posted to YouTube can be shared by anyone with the link, even if the recording is unlisted and does not appear in search results.

Photographs of Children

A best practice for a church is not to post photos or recordings of identifiable children, including images of children during the children’s message in worship service, even to private Facebook groups.  Group distance shots and back of head shots during youth ministry activities are an alternative to identifiable photos of children, which may be downloaded and misused by others.  And, a church that posts photos of youth may be subject to the same legal claims described above.  Further, children are not in a legal position to provide their own consent to the use of their image and the church must rely on the consent of a parent or guardian.  In some states, courts have found that parents cannot release or waive the claims of their minor children.

A church that chooses to post photos of children can refer to the Children’s Online Privacy Protection Act (COPPA) for establishing a policy about its use of photos of children.  Under ordinary circumstances, a church is not subject to COPPA because it does not operate a commercial website, but COPPA’s requirements that a website operator give notice as to how the operator uses information about children and that the operator obtain verifiable parental consent for the use of that information are reasonable for a church to include in its policy, which should apply to all minor children.  (If your church does operate a commercial website or portion of a website directed specifically to children, consult with an attorney about the applicability of COPPA.)

COPPA was passed in 1998 and requires certain commercial websites and online service providers to 1) provide notice on the website of what information is collected from children under 13 years old by the operator of the website, how the operator uses the information, and how the operator discloses the information; and 2) obtain verifiable parental consent for the collection, use, or disclosure of personal information from children under 13 years old.  15 USC § 6502(a).  Personal information includes: first and last name; address; online contact information; screen name; telephone number; social security number; IP addresses or similar identifiers; certain photos, videos, and audio files; geolocation information; and other identifying information. 16 CFR § 312.2.  A church should have a privacy policy that notifies members how children’s information is collected, used, and disclosed to others, as well as a process for obtaining affirmative verifiable parental consent to share the information, including photos and videos.  

Under no circumstances should a church ever post a photo of a child, with or without other identifying information, to its website or social media, without first obtaining parental consent.

The participation of children in a church’s online presence or in relationship with church staff is beyond the scope of this article, but is a primary abuse prevention consideration for churches.  For more help with abuse prevention in online spaces, please see the following United Church of Christ resources:

  • A Sure Foundation:  Social Media Guidelines:  Part of the A Sure Foundation resource from the Ministerial Excellence, Support, and Authorization Team at the National Setting, this resource includes a section on adult-minor social media relationships as well as a sample consent form for the use of photos for adults and minors.  Churches should seek the advice of an attorney in their jurisdiction as to the enforceability of the release.
  • Sample Abuse Prevention Policy:  Part of our larger selection of Abuse Prevention Resources, and includes provisions for virtual spaces.
  • Insurance Board SafeConduct Workbench:  A variety of resources related to abuse prevention, including a sample policy with provisions for virtual spaces.

Remember that when considering policies on the use of photos and videos, the church should be focused on respecting the privacy and safety of individuals and creating mutual expectations for how this information is shared.  The potential for legal liability will be reduced accordingly.

The information provided in this article is not legal advice.  If you need legal advice, please consult with an attorney.

Categories: General Counsel Blog

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