The Privacy of Social Media used by Churches

Most churches don’t want to be left behind in reaching one of the fastest growing groups in the world – the tech-savvy, social media using generation.  In today’s society, many churches have begun to expand its networking capabilities via Facebook, Twitter, MySpace, YouTube, Vimeo and so on.  However, with all of this instant connecting and internet forum blogging, there is a blurring between public and private information, and a risk of someone claiming a church has violated its privacy rights.    

In using social media, most churches use video footage and/or photographs taken from ministry services, meetings and events in their social media sites in order to advertise new events or past events.  As a result, there are things churches should legally consider before using video footage and/or photographs.  The issue deals with using identifiable pictures of people without their express, written permission.  To the extent that you can obtain written permission before using such video footage and/or photographs, such is preferred.  For example, when you do your annual Children’s Church or Youth Ministry waiver drive, you should include a general permission section and release to use such video and photos, signed by the parents or legal guardian.  As for video footage and/or photos taken from general services, you should consider adding a statement similar to below to your bulletins:

"Attention:  Church services are filmed and broadcast via TV and the Internet, and photographs of church attendees may be displayed in printed publications or in electronic format such as on church websites or social media pages."

It is important to note that most people probably wouldn’t complain about their church using their individual pictures or video snapshots.  However, it only takes one lawsuit to create a very real, potentially expensive problem.  As a result, it is far better to obtain a release or waiver from individuals photographed or videotaped when those images will be used in the context of your church’s media, than it is to have to argue the facts and defenses associated with the First Amendment versus unprotected commercial use of someone’s right of publicity or privacy. 

Right of Publicity

Essentially, the right of publicity provides every person with the right to protect the commercial use of his or her identity (voice, appearance, likeness, etc).  The right of publicity came from the common law right of privacy and is codified by state statutes dealing with "intellectual property right whose infringement is a commercial tort of unfair competition."  See J. Thomas McCarthy, The Rights of Publicity & Privacy, § 1:3 ("McCarthy").

The basic elements for a prima facie case involving infringement of the right of publicity are as follows:

  1. Validity – plaintiff owns an enforceable right in the identity, name, likeness or persona of a human being.
  2. Infringement – the defendant has used some aspect of identity, name, likeness or persona, without authorization, in such a way that plaintiff is identifiable from the use, and that use is likely to cause damage to the commercial value of that persona and/or is for defendant’s commercial advantage.

While the actual elements involved in a right of publicity lawsuit vary from state to state, validity, infringement and injury will be core elements to any right of publicity claim. If a plaintiff successfully claims that there has been damage to his/her self-esteem, dignity or state of mind, then this is considered an infringement of the "right to privacy."  In such matter, the damages are not for the "commercial value" of the persona, but for injury to self-esteem, dignity and peace of mind, which is based on evidence of mental trauma and distress.

McCarthy, at § 3:2, and 11:26

Most case law indicates that non-celebrities also possess the right of privacy and the right to control publicity over their persona. 

Courts generally assume that if the plaintiff’s identity is used for commercial purposes, then such identity has a commercial value.  The defendant’s claim of not receiving any commercial benefit is therefore usually irrelevant.  Note, also that advertising church events or services which contain plaintiff’s identity could be considered commercial benefit to the church.

McCarthy, § 4:17.

When a person is identifiable as a "face in the crowd" in a public place, the media is free under the First Amendment to use the photo in connection with legitimate news or social commentary coverage of the event.  However, that same photo should not be used in connection with commercial advertising without consent from the person who is identifiable.

McCarthy, § 4:63.

"Media" versus "commercial use" is not mutually exclusive.  However, "media" use generally indicates use of personal identity that has a reasonable relationship with the normal content of the media, such as news, commentary on public issues.  "Commercial" use generally means using personal identity in advertising or promotion or in connection with the actual goods or services themselves.

McCarthy, § 7:2.

This article is written by Attorney Tracey Lee

Legal Counsel for Word of Faith