Teachers secretly judge their students
Participation in lessons via video - is that possible?
Technology makes it possible. Students can participate in their class' lessons from home using video conferencing platforms. This possibility is of particular interest in times of Corona, especially if students either belong to a risk group themselves or have family members with previous illnesses and for this reason cannot come to school to take part in lessons. The question therefore arises whether this is possible from a school and data protection perspective?
The legal situation
The recording of lessons in the form of audio or video and the transmission of image and sound data from the lessons as part of a video conference are not without problems from a data protection point of view. It is about an encroachment on basic rights for which there is so far no regulation in the NRW School Act that legitimizes the implementation of video conferences between teachers and school administrators or between teachers and students. It does not matter whether it is about recordings, streaming, listening in over the phone or participation via a video conference platform. Since the subject of video transmission of lessons is currently not even provided for in the School Act, only the requirements for audio and video recording remain for legal guidance. That is not the case, because, strictly speaking, there is also a very short-term temporary storage of this data in a video conference, since without it, from a purely technical point of view, no transmission would be possible.1This transmission of image and sound data in a buffer does not, however, represent perpetual storage, because it is only temporary and is therefore not to be equated with storage in the sense of recording video recordings.
In the new version of the School Act of May 2020, recordings of lessons are only permitted with the consent of the person concerned in accordance with Section 120, Paragraph 6.
It is therefore clear that with the consent of those affected, that is, both students and teachers, image and sound recordings are possible. According to the meaning and purpose of this regulation, it can also be applied to a transfer. This means that with the consent of those affected, a video conference or streaming of the lessons can take place.
Possibilities of implementation
In most cases it can be assumed that consent will be given, provided that the data subjects have no doubts about the security of the platform used or they have any other fundamental objections. But even if some people refuse to give their consent, it may still be possible to have a video transmission of the lesson or the participation of a student in the class via video conference. This is described below.
The school law is based on the normal case. There is no exceptional situation as in the case of a pandemic.
Consent always requires voluntariness and information about data processing. With the latter, those affected can weigh up the risks that may arise for them in order to make a decision. Since pupils are obliged to take part in lessons, they can only be voluntary if there are equivalent alternatives. This could be the offer to take part in lessons in a parallel group.
In normal times, if it is only a matter of making lessons accessible to a student in the hospital, such an alternative would be quite feasible, in times of Corona with fixed study groups, this would be difficult. If students refuse to give their consent, this can only mean that the classmate cannot participate via a video conference platform or an alternative must be found to enable the classmate to participate without affecting the rights of the other students.
One such possibility could be that the camera of the laptop, tablet or smartphone, via which the video conference platform runs, is only aimed at the part of the class where the blackboard or display and the teacher are located. In order not to detect students who refuse their consent via the microphone of the laptop / tablet / smartphone, it would be possible to mute the microphone each time the student concerned makes a contribution. Alternatively, the teacher could wear a small clip-on microphone that is coupled to the end device and that only picks up their own voice. The students who do not want to be part of the video transmission should sit further back in the room. If the technical possibility as described does not exist, a video conference connection must be dispensed with.
There is no alternative for the teachers. Here only consent can be given or refused. In the case of refusal, one would have to see whether the classmate who would like to participate from home could be given the opportunity to take part in the lessons of a parallel group. If this does not work either, the classmate cannot participate via a video conference platform.
Consent must also be obtained from the student participating from his home. In addition, that student should sign a cease and desist declaration undertaking not to record the video conference or to allow anyone else in the household or online to participate.
The following two templates are for the students in the class. For the students who participate from home, you can use one of the templates for Jitsi, BigBlueButton, Teams, Zoom or create your own for another video conference solution.
The following template assumes that a student is actively participating in the classroom using a teacher's smartphone connected to a speakerphone (Bluetooth loudspeaker with microphone).
This template assumes participation via a video conference platform. For this purpose, a provider should be selected who unequivocally meets all school and data protection requirements and with whom a contract for order processing can be concluded.
In the previous version of this post, originally from May 2020, a possibility was also described how the use of video conferences can be made mandatory by the school management under special conditions during the pandemic in order to maintain teaching and school operations. However, this legal option described by the LDI NRW only existed for a relatively short period of time before the Second ordinance for the temporary amendment of the training and examination regulations according to § 52 SchulG in October 2020 and the revision of the NRW School Act in September 2020. Since the State of North Rhine-Westphalia made explicit provisions for distance teaching in the second ordinance, I do not see any possibilities from a data protection point of view, the possibilities described by the LDI NRW also in the current one Implement the situation of school closings without violating applicable law. For the sake of completeness, the text that is no longer present in the text above is listed here.
Exceptional situation - pandemic
In May 2020, the LDI NRW in the writing Pandemic and School on the problem of video conferences in times of COVID19. She considers a different approach to data protection law to be justifiable:
"The implementation of video conferences including the associated necessary data processing could temporarily be based on the above-mentioned general clauses in school law in § 120 Paragraph 1 Clause 1 and 121 Paragraph 1 Clause 1 SchulG, insofar as the school management is able to do so during school closings and the extensive prohibition of contact To maintain teaching and school operations deemed necessary to carry out such video conferences. "
At the same time, however, the LDI NRW also makes it clear that such a possibility only exists within very narrow limits. This includes, for example, that the school is in control of the data. This means that it either operates the video conference platform itself or uses a provider who offers a contract for order processing. This is most likely the case with providers from Germany or the EU. Ideally, the school has a video conference platform provided by the school authority, a commissioned IT service provider or the state. See also Using video conferencing platforms in schools. In addition, no recording of image and sound data may take place and no other people may participate in the video conference. This must then be ensured through suitable organizational measures.
A statement by the Hessian Commissioner for Data Protection and Freedom of Information is also interesting in this context (HBDI) on the subject of video conferences in schools in times of Corona. The article "Video conferencing systems in schools" states:
"When schools are closed to cope with the Corona crisis, video conferences can make a significant contribution to fulfilling the state's educational mandate. The HBDI therefore assumes that, for the duration of the crisis management measures, the currently available video conference systems based on a preliminary positive assessment in accordance with Art. 6 Para. 1 Book. d) and e) GDPR are considered permitted. "
This is very interesting insofar as the HBDI grants schools the opportunity to use video conference platforms without the consent of those affected. Schools are given the opportunity to base the data processing required for video conferences on Article 6 (1) (d) GDPR. This is the case when it comes to "protecting the vital interests of the person concerned or another natural person" - in this case the health of students and teachers with previous illnesses or family members with previous illnesses. This gives them the right to take part in lessons via video conference. In addition, schools can base the necessary processing of personal data on Art. 6 Para. 1 lit. e GDPR in order to carry out video conferences to fulfill their state education and training mandate in the performance of a task "which is in the public interest" .
Even if in this case the consent of the data subject does not have to be obtained, the provision of information according to Art. 12 GDPR is still required.
The statements of the two state commissioners for data protection have one thing in common. They both take the view that in the exceptional situation of a pandemic, the regulations for conducting video conferences that otherwise apply in normal times can be overridden in order to protect the more fundamental rights of those affected, namely the maintenance of teaching and school operations (LDI NRW), and to protect the vital interests of the data subjects themselves or of another person.
The exceptional situation exists in the case of previously ill students who are unable to take part in face-to-face lessons, although they no longer continue for a whole school or whole classes, but this situation should be based on the same data protection approach.
A school management could thus rely on these two statements and enable individual students who are unable to attend classroom teaching due to previous illnesses to participate via video conferencing without having to obtain the consent of the students and teachers. To this end, it should create a guideline regulating when, in what form and to what extent the video transmission may be carried out. She should put the reasons for this in writing and make it transparent to those affected why she is going this way. In addition, they would have to inform the data subjects about the necessary data processing in accordance with Art. 12 GDPR and have the previously ill pupil and the parents sign a cease and desist declaration in which these persons undertake to comply with the specified rules, for example that the video transmission is not recorded or is made available to third parties in any other form and that no other persons than viewers or listeners are present during the broadcast.
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