Sharing Client Photos and Videos: An Update

Of all the ethical discussions regarding professional behavior online, the one that I tend to get the most vocal about regards sharing photos and videos of clients as part of website or social media page design and/or the use of photos and videos in advertising and marketing.

The following exerpt is from one of my most shared blog entries Sharing Photos and Videos of Clients Online– Is it Ethical from March 10, 2017.

Ethical photography and video recording is conditional, meaning that it may be okay to photograph and record individuals you work with under certain circumstances. For example, it may be quite appropriate to create a permanent product of work samples or challenging behavior for use as a comparison at some later date to demonstrate the effectiveness of an intervention or as a record of progress (or lack thereof). It may also be appropriate to take photographs and record individuals to make materials that you will use during your instructional or therapy sessions, to create decorations for your classroom or therapy center, or to make mementos (like yearbook photos). Assuming that the photographs and recordings were taken using equipment owned and operated by the school or agency (not on personal phones), were stored securely (not on personal computers or personal cloud storage accounts), and separate consent was obtained for each use of the photos or recording, there would likely be minimal risk and many benefits to using photos and recordings for these purposes. In addition, by keeping the photos and videos “internal,” it decreases the risk that the photos and videos will end up being used in a way in which consent was not obtained for.

“Sharing” refers to the act of uploading content via the internet (pictures, sound bites, recordings, documents, images, etc.) to show others. Common forms of sharing (at the date of this publication) are adding content to a social media site, a website, a blog post, an email, a text, or providing access to content in a cloud storage folder. Often times, people have a false sense of security because social media groups are labeled “closed” or “private,” or cloud storage folders are password protected. Content that is shared under these circumstances are as vulnerable as content shared publicly because print screen and screen recording technology allows viewers to copy content and potentially redistribute it.

Professionals must always question whether or not sharing photos and videos of clients for any reason is ethical and professionally necessary, but when posting online, you must also ask yourself “Can I guarantee that once shared, the content will only be used in the way that permission was obtained for?” Unfortunately, the answer at this time is always no. Therefore, prior to sharing any content, including photos and videos, regardless of whether or not you have consent you must consider whether or not you are okay with the fact that you have no control over what others do with that content once it is shared.

I included decision making guidelines for sharing photos and videos online, and the basis for the guidelines were several ethics codes and other resources on privacy in education, the rights of individuals with disabilities and more. Since 2017, two of the ethics codes that I used to develop the guidelines have been updated. The updates in The Code of Ethics of the National Association of Social Workers (NASW, 2017), aligned with the entry I wrote earlier in the year and I decided not to do an update or write commentary on it. Since I am commenting on the original post to make updates however, I included a few immensely powerful pieces of that code at the end of this entry which support my assertions regarding client autonomy, right to privacy, assent, and consent in the 2017 entry.

In the last three blog entries I have written about the new Ethics Code for Behavior Analysis (BACB, 2020) which goes into effect January 1, 2022, I have been quite complimentary of the updates. As for sharing photos and videos of clients, the BACB has not quite hit the mark for me but it not too far off. Let’s start with where they were spot on.

We will start with the glossary definition of Digital Content provided by the BACB in the document Ethics Code for Behavior Analysts:

“Information that is made available for online consumption, downloading, or distribution through an electronic medium (e.g., television, radio, ebook, website, social media, videogame, application, computer, smart device). Common digital content includes documents, pictures, videos, and audio files.” (BACB, 2020)

We move now to Section 5.10: Social Media Channels and Websites

Behavior analysts are knowledgeable about the risks to privacy and confidentiality associated with the use of social media channels and websites and they use their respective professional and personal accounts accordingly. The do not publish information and/or digital content of clients on their personal social media accounts and websites. When publishing information and/or digital content of clients on their professional social media accounts and websites, behavior analysts ensure that for each publication they (1) obtained informed consent before publishing, (2) include a disclaimer that informed consent was obtained and that the information should not be captured and reused without express permission, (3) publish on social media channels in a manner that reduced the potential for sharing, and (4) make appropriate efforts to prevent and correct misuse of the shared information, documenting all actions taken and the eventual outcomes. Behavior analysts frequently monitor their social media accounts and websites to ensure the accuracy and appropriateness of shared information.

Summary: You need informed consent to share photos, videos or other digital content, need to provide a disclaimer that you obtained consent and that the digital content cannot be copied or shared without permission. Finally, you will need to make sure you have a plan in place in the case that the photo or video you shared is lifted and used for purposes other than that outlined in your consent form.

Interpretation: There are great guidelines in 5.10, but as I always say (and will say a few times in this post) once you share digital content online, you have no control over how it will be used. What sort of plan do you need to have in place to prevent the misuse of the digital content? Is it more effort than it is worth? It might be. These are excellent questions only you can answer.

Now for the part that I would have liked to be more explicit: Is a shared photo or video a testimonial?

In my opinion, photographs and videos that show the face of, or otherwise identify a client, are visual testimonials when shared by an organization, as the photos or videos are posted with consent from parents or clients (as they must be).

Not sure? We can turn to Merriam-Webster for some help here.

tes·​ti·​mo·​ni·​al | \ ˌte-stə-ˈmō-nē-əl  , -nyəl \

Definition of testimonial (Entry 1 of 2)

1a: a statement testifying to benefits received

b: a character reference : letter of recommendation

2: an expression of appreciation : TRIBUTE

3: EVIDENCE, TESTIMONY

As the first definition is a testimonial is statement, technically, one might argue that a photograph is not a true testimonial. That is one way to look at it. A shared photo or video is the result (or should be, see 5.10) of a written document signed by a parent or client stating that a company, school, or organization has the right to use the photograph for a specific purpose. We presume that the photo or video itself shows a situation in which the company or organization is somehow showing the success of their program (e.g. this child is smiling- they must make learning fun!). The consent to post the photo or video is written approval to show evidence of the success of a program with the child or client. You may say that I am stretching here to find the connection. I argue that not only am I not stretching but the third entry in the definition of testimonial in Merriam Webster dictionary supports the argument. A testimonial is some form of evidence.

Futhermore, the glossary in the Ethics Code for Behavior Analysts (2020) defines testimonial as follows:

“Any solicited or unsolicited recommendation, in any form, from a client, stakeholder, supervisee, or training affirming the benefits received from a behavior analyst’s product or service. From the point at which a behavior analyst asks and individual for a recommendation it is considered solicited.” (BACB, 2020)

I hope you are convinced that certain photos and videos can be testimonials. I am even more convinced now.

“Since the BACB say testimonies for advertising are a no go for current clients (5.07) and should be considered with extreme caution for former clients (5.08), what is the harm of sharing photos or videos in testimonials or as testimonials if it benefits the school the child goes to, or can help disseminate ABA?”

Testimonials can be quite pursuasive and the BACB Ethics Code for Behavior Analysts recognizes that in section 5.09

“Behavior analysts may use testimonials from former or current clients and stakeholders for non-advertising purposes (e.g., fundraising, grant applications, dissemination of information about ABA) in accordance with appliable laws.”

If digital content are testimonials then it is reasonable to assume that one could use digital content for the above mentioned non-advertising purposes. Of all the new pieces in the code, this is the one I don’t feel comfortable with but it stands to reason that no ethics code can cover every possible senario but should give a solid foundation for making ethical decisions. This is best stated by Sellers et al., (2020),

“…a professional code of ethics could never outline all of the relevant and everchanging contexual variables that should informe the application of ehtical principles; therefore, it is up to the practitioner to actively and thoughtfully consider specific variables in applying professinal judgement to potential or actual ethcial dilemmas.” (p. 715).

As such we will look to other guidance throughout the code to help answer the question “What is the harm if sharing of sharing photos or videos in testimonials or as testimonials if it benefits the school the child goes to, or can help disseminate ABA?”

The new code includes the following selected excerpts from the Core Principles

1. Benefit Others. Behavior analysts work to maximize benefits and do no harm by:
   • Protecting the welfare and rights of clients above all others
   • Protecting the welfare and rights of other individuals with whom they interact with in a professional capacity.

2. Treat Others with Compassion, Dignity, and Respect. Behavior analysts behave toward others with compassion, dignity, and respect by:

• Respecting others’ privacy and confidentiality
• Respecting and actively promoting clients’ self-determination to the best of their abilities, particularly when providing services to vulnerable populations

Interpretation: If you agree that photos and videos are evidence of the success of a program and share them via email, social media or via your website for fundraising or other purposes, even with consent or assent to do so (A) you increase risk to privacy and confidentiality, (B) put the best interests of others or yourself above the best interest for your client, and (C) you may be failing to promote client’ self-determination to the best of their ability.

Wow- Adrienne. Seriously? We have a fabulous reputation and get consent for all photos and videos posted. Our kids love to see themselves on the website. Many schools and agencies do it-You are being too strict -get over yourself. Finally- photos as testimonials- please- it isn’t like the possibility of undue influence and implicit coercion could play into families or clients consenting to use pictures on our fundraising emails.

Let’s take these one by one.

Argument 1: My clients love seeing themselves on the website.

Adrienne’s response: It sounds like your clients enjoy seeing their picture on the computer, tablet, or phone. Set up an internal, private photo sharing service for your classroom and let the kids access the photos in there. This is a great way to let your clients be the star without sharing their photos externally and putting their privacy at risk.

Argument 2: We have a fabulous reputation and get consent for all photos and videos posted.

Adrienne’s response: Your reputation will suffer if the photos and videos you share externally are used for purposes other than those outlined in the consent form. More importantly, your reputation will suffer if it is found out that you did not provide parents or clients with an outline of the risks associated with sharing their photo or video when they provided consent (regardless of the purpose), including that you have absolutely NO control of how their photo or video will be used once it is published online.

Argument 3: Many schools and agencies do it-You are being too strict -get over yourself.

Adrienne’s response: This isn’t about me. This is about privacy rights. You can’t ensure the that any picture of video you post online will be used for your intended purpose. Just because others do it doesn’t mean it is right. More than that, the most important question that you need to ask yourself is “What direct benefit does this have for my client?” Fundraising for your school or agency directly benefits your school or agency and may indirectly benefit the client in the picture, but it may not. Using the photo in dissemination work directly benefits the field, but not necessarily the person in the photo or video. Think about the answer to the question “what direct benefit does this have for my client?” and as you do, remember a core principle of the profession of behavior analysis is to protect the welfare and rights of clients above all others.

Argument 4: Finally- photos as testimonials- please (eye roll)- it isn’t like the possibility of undue influence and implicit coercion could play into families or clients consenting to use pictures on our fundraising emails, webpages, and social media postings…right?

Adrienne’s response: You cannot assert that asking current clients or their families who, by the nature of their relationship with you, are vulnerable, to consent to share photographs or videos of themselves or their child participating in your program for fundraising purposes, for webpages, or social media is less problematic than asking for advertising purposes. In both cases, the client or client’s family member may feel that saying no will impact their services or their relationship with the provider or the organization.

Hey Adrienne-Photos and videos of success stories may help help raise money. Fundraising is important for our organization to continue to provide serivices. What do you suggest we do? 

Suggestions for minimizing risk when sharing photos and videos when fundraising, disseminating, or in other approved ways.

1. When parents are involved in fundraising make sure to provide information about risks to their privacy when posting personal information and pictures when sending fundraising emails or soliciting donations online via social media. Let them know they:
   • Do not have to use pictures of their child in the program and they do not have to use pictures of their child at all.
   • They should use their own picture when soliciting money and telling their story.
   • They should consider how much information their child might want shared about them or their journey online. This is an extremely hard exercise. Sometimes it helps to ask, would you want your parents to have told the world about a private struggle you had as a kid to raise money? Parents can share their own fears, struggles, and proud moments but provide models of how that can be done without violating the child’s privacy rights.
2. When planning a virtual fundraiser, make sure your consent form includes that you cannot ensure that others will not record the content like photos from slideshows and that you cannot control what will happen if that content is shared by others. Give them the option to opt out or to submit drawings, audio, or other media that do not have the same privacy violation risks.
3. Focus on staff stories, the moments that are meaningful without disclosing who the client was that were part of those meaningful moments.
4. Alter photos using filters and artful overlays that give the general gist of what you are hoping to show while deidentifying the people in the pictures.

Summary: If I succeed at anything by writing blog entries on ethical professional behavior in online environments, I hope it is that I can convince some people that posting photos of clients or students on organization websites or social media pages isn’t best practice and that there are always alternatives. Of course, I respect that others may have differing opinions and I am always open to hearing yours. Please drop a comment below or reach out to me via email.

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Code of Ethics of the National Association of Social Workers

From the Section Ethical Principles:

Value: Dignity and Worth of the Person

Ethical Principle: Social workers respect the inherent dignity and worth of the person.

From the Section Ethical Standards

1. Social Workers’ Ethical Responsibility to Clients
   • Commitment to Clients

Social workers’ primary responsibility is to promote the well-being of clients. In general clients’ interests are primary….

1.07 Privacy and Confidentiality

1.07(r) Social workers should avoid posting any identifying or confidential information about clients on professional Web sites or other forms of social media.

1.14 Clients Who Lack Decision-Making Capacity

When social workers act on behalf of clients who lack the capacity to make informed decisions, social workers should take reasonable steps to safeguard interests and rights of those clients.

References:

Behavior Analyst Certification Board (2020). Ethics code for behavior analysts. Littleton, CO: Author

Fitzer, A. (2017, March 10). Is sharing a photograph or video of a client or student online unethical? ABAC. https://www.abacnj.com/fitzers-corner/ethicsandphotographs/

Merriam-Webster. (n.d.). Merriam-Webster.com dictionary. Retrieved January 22, 2020, from https://www.merriam-webster.com/

National Association of Social Workders (2017). Code of ethcis of the National Association of Social Workers. https://www.socialworkers.org/About/Ethics/Code-of-Ethics/Code-of-Ethics-English

Sellers, T.P., Carr, J.E., & Nosik, M.R. (2020). On the BACB’s ethics requirements: A response to Rosenberg and Schwartz (2019). Behavior Analysis in Practice, 13(1), 714-717. https://doi.org/10.1007/s40617-020-00463-6