Worrying is in my genes and this is definitely not helping me right now
November 21, 2011 12:25 PM   Subscribe

YANAL but I need to get some answers so I can stop obsessively worrying about whether or not I can get sued over this.

I'm a grad student in a creative writing program. As part of a pedagogy class, we were asked to design a class to teach creative writing to people outside the school. Because I work with kids as a private tutor, I, along with another colleague, put together a mini-course of 3 class meetings to teach kids how to write fiction and I invited some of my tutorees to join. By invite my tutorees, I mean that I asked their parents if they are interested in letting their kids join.

Because we will have to write a pretty detailed description of the class and its outcome, my colleague suggested that we film the class. That way, while writing up our paper, we can see how the students interacted with each other, if they seemed interested in the activities, what might have worked better, etc.

So, the kids are doing really well and everything is going fine until one of the parents pulls me aside after class. She is upset because of the filming, which she says she was not aware of. I had thought that my colleague had explained the filming to her, but I guess I misunderstood. I apologized and reassured the mother that we would not be publishing or sharing the video with anyone and that it was just for the project only. I also told her that we would be happy to destroy the video data if she so wishes (I really mean this, even if it means I'll have to write up my project from memory alone).

I also informed my colleague, who was doing the filming, of these developments and she privately talked to the mother and explained everything, probably better than I could since she speaks the mother's native language. My colleague later told me that the mom was "okay" now and not to worry.

But I am worried. Very, very worried.

I'm worried that I could get sued for not getting *on paper* permission to film a class of 12-year-olds learning how to write stories.

I honestly had no bad intentions here and like I said we never, ever intend to publicly post the videos anywhere. It was just for keeping track of things to include in our paper. I already tutor these kids, one-on-one, in writing and have done so for nearly a year. So I thought it would be neat to teach them fiction writing in a group, where they could interact with one another and share their stories. I never expected all of this drama.

Intentions don't count in court, I guess, so I'm wondering if this lady could ruin my life/academic career by suing me.
I am SUPER WORRIED about this and literally cannot calm down enough to focus on other homework.

posted by anonymous to Law & Government (23 answers total) 1 user marked this as a favorite
if you don't trust your colleague then maybe you need to apologize again. there's nothing stopping anyone from suing anyone, except for some filing fees, but why would she sue you? is there something you haven't shared here? because it sounds like you are worried for no reason at all. this sounds like an anxiety problem, not a legal problem.
posted by facetious at 12:30 PM on November 21, 2011 [3 favorites]

You're right, IANAL, but (without knowing what jurisdiction you're in) it seems incredibly unlikely that she'd sue, because the motivation for doing so would be to recover some kind of recompense for damages, which there aren't any. Until you, you know, publish the video and make millions, why would this mother go to the trouble of hiring a lawyer to sue a poor graduate student over nothing? You're freaking out. Stop.
posted by axiom at 12:31 PM on November 21, 2011 [2 favorites]

IANAL, but I can't imagine anyone going beyond a lawyer's letter demanding destruction of the film (which you're willing to do). What are they going to sue you for other than that? You don't have deep enough pockets for it to be worth their while (or a lawyer's).
posted by yoink at 12:33 PM on November 21, 2011

Also, the only thing here that could "ruin your career" would be a criminal case, which doesn't seem remotely in the offing. "I got sued by some nutcase parent" is something you could bring up in a job interview without a blush.
posted by yoink at 12:35 PM on November 21, 2011

There are a few issues here, but the first big one: you are never going to publish, or publicly promote, this paper, right? Because if you were, you would have already gone to your Institutional Review (or Ethics) Board, right? Right?

If you do have intentions to use this data in the future, though, you have probably put yourself in a position where you cannot. At all. End stop.
posted by vivid postcard at 12:35 PM on November 21, 2011 [14 favorites]

Anybody can sue anybody, but it seems really unlikely that she'd sue you without calling the cops on you first. So you'd know by now if there was a problem.

To save future freaking out, you might discuss with your adviser why the issue of permission to film didn't come up. In the psychology department, those would be human subjects and require approval, why doesn't the education department at least require a permission slip? (Why have you not discussed this with your adviser, also?)

You may want to look into the anxiety issue, though. Just for your own sanity.
posted by Lyn Never at 12:37 PM on November 21, 2011 [1 favorite]

(Another thing - did anyone ask the kids whether they wanted to be filmed? I mean, ask them in a way where they could say no if they didn't want to be, rather than in a large group where they might feel pressured to say yes? I would absolutely have hated and been horrified at the thought of being filmed at that age - not big on it now, for that matter - and I think kids should have at least as much say in this process as their parents.

I doubt you'll get sued, though - you haven't made money or disseminated the information, you don't have any money and the only people who would sue would be parents who are presumably otherwise happy about the tutoring. They might get mad and you might have to conclusively destroy the video.

As far as your career goes, remember that this is a totally innocuous-looking video of a group of kids doing something ordinary - it's not even like you're filming something in a way that could look dodgy, like a girls' gymnastics event or something.
posted by Frowner at 12:54 PM on November 21, 2011 [1 favorite]

IAAL, while IANYL, nor probably licensed to practice in your state. If you do wind up getting sued you'll obviously need to retain your own counsel. This isn't legal advice, but it should help you know how to talk to a lawyer if you feel you need one.

In the vast majority of US jurisdictions--something like thirty-eight of fifty--as long as one party to a conversation consents to it being recorded, there's no cause of action for the person who didn't give their consent. So the question becomes where you happen to be located. Because you were one party to this interaction and obviously gave your consent, the fact that mom didn't wouldn't seem to matter if you're in a "one-party consent" state. But if you're in an "all-party consent" state, there could theoretically be a cause of action. Some states also have different rules for video, so that's something to keep in mind.

Even assuming there is a cause of action, there's also the question of damages. It'd be one thing if you were publishing this on the internet, or somehow selling the footage in some way. Now we'd be getting into rights of publicity and invasion of privacy, which are real things. But publication is an element of those torts, so there's that. But barring claims like that, I'm having trouble coming up with an actual number here. The mere fact that a tort has been committed does not automatically entitle the plaintiff to a bajillion dollars. They need to prove their damages. There being no obvious damages here, there's very little incentive for a plaintiff's lawyer to take this case, regardless of what else is going on.

Lastly, if for some bizarre reason you do wind up getting sued, you should do two, possibly three things. First, contact your university. They may well have a mechanism set up for dealing with this sort of thing, as students do, in fact, get sued from time to time in the course of their studies. It happens, and someone in the administration should have thought about it already. Second, contact your homeowners' or renters' insurance carrier. Those policies frequently come with "advertising injury" coverage, which could be applicable to something like this. If nothing else, you might get your defense costs paid. Third, if the first two things don't wind up with you getting a defense attorney paid for by someone else, retain your own counsel. The last thing you want is to be in a situation where the other side has counsel but you don't.
posted by valkyryn at 12:57 PM on November 21, 2011 [2 favorites]

I agree in that she could sue, but what would be the point? Why would she go through the hassle of filing a court case, potentially getting a lawyer and waste time in court when you have already said you were going to make amends. She has nothing to gain, so put those worries aside my friend. Now if you were selling the videos or putting them YouTube, if might be a different story.

I also do think you should send out a paper or some sort of release to the guardians / parents of the children in the future.

Hakuna Matata
posted by amazingstill at 1:01 PM on November 21, 2011

Yes, I think what you should be concerned about is more the possibility that you are doing human subjects research (on minors) without IRB approval. I can't quite tell but it sounds like you may be. The situation arose partly because you (it seems) are not aware of informed consent issues with minors; being so informed would probably have led you to present the study to their parents in a somewhat different way (i.e. there would have been an informed consent form that would have described exactly what was involved, and you would probably have a fairly standardized script for explaining things to them). Because this is part of a class that you are taking, it is potentially as much the instructor's problem as yours, as most IRBs have a special process for dealing with research in the context of a class. I would encourage you to talk to them if you haven't already, one would hope they have some knowledge of whether you need IRB approval.

On preview I would _not_ go talk to someone at the university level as a first step, because you need to know what the IRB situation is w.r.t. situations like this, and administrators potentially could overreact to this situation.
posted by advil at 1:07 PM on November 21, 2011 [2 favorites]

It sounds like she is not going to sue you. Suing someone is expensive/time consuming and if the mother seemed okay at the end of it all, I don't think she would.

For future reference though, you MUST get signed consent from a parent/legal guardian in order to film children (ie make sure its not just a 14 year old sister signing it). I'm not sure what the law on this is, but it has something to do with them being minors. In the elementary school I work in, even student teachers who are required to tape their instructional time must get signed consent from students' parents. Those who don't return the form are removed from the classroom during the recording time.
posted by fuzzysoft at 1:07 PM on November 21, 2011

Oops, my on preview comment is slightly confused, I misread valkryn's comment, so you should just ignore it.
posted by advil at 1:08 PM on November 21, 2011

I am a lawyer, but not your lawyer.

I don't think you're going to be sued. However, never discount the value of sincere apology. If you're anxious over this, instead of continuing to be so anxious, put some effort into hearing and acknowledging the mother's worries and assuaging them. Many lawsuits and other disputes result because people feel dismissed and that someone has acted in a highhanded manner. This woman may be concerned for her child and simply not understand what is going on or is planned for the film. Take your friend who speaks her language with you if you need to in order to make yourself clear. Reassure her and be very courteous.

Then forget about this. Except in future if you have a need to film anybody, get their (or their parent's) permission first.

And remember that even if you wanted to do something more with this film, you could STILL get permission from the parents of the children.

Really, you have very little to worry about. This is not any sort of situation that is likely to support a lawsuit and is certainly not, as someone suggested above, anything that will result in a call by the police.

Good luck.
posted by Jenna Brown at 1:13 PM on November 21, 2011 [4 favorites]

Oops, my on preview comment is slightly confused, I misread valkryn's comment, so you should just ignore it.

Right. I'm pretty comfortable saying that this isn't an IRB issue. But it wouldn't hurt to get permission from parents ahead of time in the future.
posted by valkyryn at 1:15 PM on November 21, 2011

IANAL, IANYL, TINLA: I came in here to say what Vivid Postcard (and on preview advil) said already -- if you do not broadcast the recording or findings based on the recording, you're probably clear practically speaking, but it's still not cool.

If you ever hope to publish outside a classroom setting (eg, a report for a class project) you MUST get institutional review board (IRB) approval from your sponsoring institution. If you're not in the US, the ethics board may be called a different thing, but you probably still need its approval. Under US guidelines anyway, you CANNOT use any of the data you've gathered without IRB approval in any published materials -- you'll need to submit your project for IRB approval and only once that approval is granted may you recruit subjects and collect data again.

Also: yes, from a video production standpoint, aside from the ethics of research, you NEED an image release form signed by an 18+ parent/guardian to record images of their children for release. You can find plenty of decent boilerplate image releases online (mostly for documentary film, though that should serve here).
posted by Alterscape at 1:16 PM on November 21, 2011

And to jump in after Alterscape: I know some people would try to get some wiggle room with IRB and get this labelled as a "pilot project" to included in a later research project (in order to make it so it can, thus, be discussed in that published paper), but because this study involved minors, that room is just not going to be granted.

So: if you are just handing this paper in for a grade and to later line your parakeet's birdcage, you're golden.

But if you want to do anything with the paper (and just to clarify, I am not talking about the footage, but the paper you generated from the footage) such as publish, take it on a speaking tour, present it in a conference*, you just can't. You would first have to submit the IRB paperwork, gain approval, and then conduct your research again, according to the guidelines.

If this doesn't apply to you, though, no need to worry! But, in future: your advisor, as well as your school's IRB office, should have plenty of information (and forms) available about the review process, should you decide to engage in another, similar project again. It might be worth checking them out sometime.

*I'm actually unclear about whether one can present such data at an academic conference. I do know that my advisor would have a aneurysm if I did, though.
posted by vivid postcard at 1:28 PM on November 21, 2011

I work in a school with children of this age, and I'm a parent there. There is an expectation that when minor students are being filmed that permission needs to be given by the parents or guardians, because the issue is that you cannot control what happens with what's been published beyond its initial release - so I'm with fuzzysoft on this. But the release also covers their names and work being filmed/used too - did you consider this?

As a grad student doing this privately, there is probably not the same expectation, and you might have caused even more worry by having a formal media release for such a use - but it would be smart to do so if you're going to do this again (or, as others have said, get IRB approval and follow any guidelines). If you can reassure the mom that you filmed only for personal review purposes, and that it will not be circulated and will be destroyed after you've completed your work, that should be fine. She will probably not sue. It is just plain too much work. That said, if she has private reasons (and some of our students are on the no-release list for very good reasons - custody worries, children from domestic abuse situations, children of public figures, etc.) you ought to be considerate of those issues - she may not have been clear on what she was verbally agreeing to. I know, these are slight chances for a small group you might know well - but it's a thought. It's worth putting what you're doing in writing so that everyone is very clear on your intents and usage.

The policy is that as part of the yearly welcome package, parents sign a media release form, like so, and again individual forms for certain productions. (This basic one I've included so you can see what concerns are covered by it, though I understand for your purposes they may not apply):
Please ensure one box is checked for Part 1 and one box is checked for Part 2 of this form.

Part 1– Events

I, _____________________________________________, hereby agree and give my permission for the xxxx District School Board and/or partners to record, film, photograph, audiotape or videotape my/my child’s name, image, student work, and performance (hereinafter collectively referred to as “Works”) and to display, publish or distribute these Works for the purpose of publishing, posting on the xxxx website, posting in schools, posting on social media sites and/or for broadcasting on television or radio as determined by the xxxx.

I hereby waive any right to approve the use of these Works now or in the future, whether the use is known to me or unknown, and I waive any right to any royalties related to the use of these Works.

I understand that the Works may appear in electronic form on the internet or in other publications outside of the xxxx’s control. I agree that I will not hold the xxxx responsible for any harm that may arise from such unauthorized reproduction.

Please mark this box if you AGREE that your child may participate in recorded xxxx/school events and xxxx hosted events as described above. (See Part 2 below)

Please mark this box if you DO NOT WISH your child to participate in recorded xxxx/school events and xxxx hosted events.

Part 2 – Media Specific

I also understand that external media organizations may attend school events. I give permission for my/my child’s name, image, student work, and performance to be photographed, filmed, audio-taped or videotaped for the purpose of being published and/or broadcast on-line, on television or radio.

Please mark this box if you AGREE that your child may participate in media events that may be published or broadcast by organizations external to the Toronto District School Board.

Please mark this box if you DO NOT WISH your child to be photographed, filmed, audio-taped or videotaped at media events.

I have read this Student Media Release Consent Form and I fully understand the contents and meaning of this release. I understand that I am free to contact the Principal with any questions regarding this release.

Student’s Name: ____________________________________________________________ Grade: ___


Student’s Signature (If 18 years of age or older)

Parent’s/Guardian’s Name:

Parent’s/Guardian’s Signature (If student is a minor – under the age of 18):


So, I am hoping this helps. To reassure you - you will probably not get sued, as long as you proceed carefully and reassuringly from here on in.
posted by peagood at 2:28 PM on November 21, 2011 [2 favorites]

I didn't read most of the other comments, IANAL, but I am a graduate student, too. Here's how it would work at my university (R1, US). You needed to get IRB approval for your observation before you started it. You needed to spell out your conflict of interest in your IRB application. Your advisor probably needed to approve the research. You needed to tell the parents and get their written approval before your observation started. It doesn't matter if you intend to publish or not, you are using human subjects for research purposes.

If I had tried that at my university and any professor found out or the IRB was audited, I would not be removed from the university but I would never get another IRB approval. Being sued would be the least of my worries.
posted by thewestinggame at 4:04 PM on November 21, 2011

As some have said above, it actually does matter whether you intended this for publication. If it's just part of normal classroom project work, then it would most likely be exempt from human subjects rules. However, it's always best to err on the side of caution with that, and especially when it involves minors. Talk to your professor, and they can help you figure out the best way to deal with this that fits within the expectations of this class, their past experiences, and the concern of the parent.
posted by bizzyb at 6:02 PM on November 21, 2011

You might not get sued, but it's sort of boneheaded. Why not get the parents to sign a release that assures them that the footage is to be only used for this 1 class project, that they can get copies of whatever you edit together and submit, and then they can have the masters?

And valkyrn is dead wrong. Minors can't enter into a legally binding contract and if you don't have permission from parents or legal guardians, you can't film kids.
posted by Ideefixe at 7:22 PM on November 21, 2011

OP, I know you might not be answering, but one question that isn't clear exactly, is why you think the mother is going to sue you (or anyone for that matter). You mentioned that the mother was upset - but did she threaten a law suit? If not, I wonder what is motivating your fear of one. It is a pretty intense response.

If she did threaten a lawsuit, I think there are a lot of great responses above. If she didn't, I wonder if you're feeling stressed about something else that is affecting your thought process here.
posted by anitanita at 8:41 PM on November 21, 2011

This isn't research. If anything, its program evaluation --IMHO. Its not likely to require IRB approval. It's also for a graduate class--which at my institution would mean no need for IRB review (ie. you're not publishing on it, data will only be shared in class).

Ethically, the sticky wicket is that you're filming out of convenience (ie. So that you can write a better paper)-- so you're creating a record (ie. Creating risk for participants) for no greater good (ie. No direct benefit to participants or general knowledge). If this were research, that wouldn't be a good reason to film.

It would've been appropriate to get written consent from the parents and written assent from the kids.

No one is likely to sue over this. But its not too late to bring it up with your professor. You may want to give parents a one page explanation for filming on university letterhead -- with wording provided by the prof.

What bizzyb said.

By the way-- DO NOT start handing out copies to the the parents..because then they can start posting copies online without getting permission from the other parents.
posted by vitabellosi at 3:50 AM on November 22, 2011

And valkyrn is dead wrong.

About what? The fact that minors presumably lack capacity to contract has nothing whatsoever to do, IRB issues aside, with whether or not it's okay to film them. Again, because most states only require one party to consent, the fact that the other party can't is irrelevant.

Think about it. If we're in a "one-party consent" state, and you and I are having a conversation, I can tape the conversation if I decide I want to even if you explicitly deny your consent. I don't have to tell you that I'm doing it, and even if I did, you couldn't do anything about it. You simply lack any way of preventing me from taping my own conversations, and the only way for you to avoid my doing that is to not talk to me.

Given that fact, I fail to see what the presence of minors has to do with anything.
posted by valkyryn at 7:39 AM on November 22, 2011

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