From the Hotline

By Teri Henning
Pennsylvania Newspaper Association

Q: Our newspaper recently interviewed some students about a student protest. All three students were 16 years old, and we interviewed them outside of the school. We then went into the school, signed in at the office, and spoke to the school administrators. What are the legal issues that we should consider before publishing the students' comments?

A: Going onto school grounds to interview and/or photograph students raises a number of legal and ethical issues.

1. Access to schools.

First, public school property is generally treated as "non-public-forum" public property. This means that schools can adopt and enforce reasonable regulations that restrict access (and particularly those that are designed to limit interference with normal school activities). You should check with your individual school districts to obtain and review their policies on access. Contact your newspaper's lawyer or feel free to call the legal hotline if you have questions or concerns about a particular access policy.

2. Potential liability for invasion of privacy

Pennsylvania courts have recognized four types of invasion of privacy claims: 1) intrusion upon seclusion; 2) false light invasion of privacy; 3) public disclosure of private facts; and 4) misappropriation of a person's name or likeness.

With all four types, consent is a valid defense. However, for a "consent" to be valid, the person giving it must have the legal ability to give it. This goes without saying, but you should be candid with your subject about what information you want to use and how you intend to use it. Although written consent is not necessary to make a consent "valid", obviously, consent is easiest to prove when it is in writing. 

3. Can a minor give consent to an "invasion of privacy"?

Not surprisingly, we have not found any Pennsylvania cases on this issue. Pennsylvania law varies when it comes to what minors can consent to -- but the age at which a minor enters into a binding contract is 18.

More general treatises on this topic (which have NOT been expressly adopted in Pennsylvania) explain that consent should be effective if a minor is "capable of appreciating the nature, extent and probable consequences of the conduct (to which he consents)," even if parental consent is not obtained or expressly refused. Restatement of Torts (Second) Sec. 892A. Obviously, this requires a case-by-case analysis.

So what does this mean to you? Basically, that there are no clear answers under Pennsylvania law. I would assume that elementary and middle school-age children are probably not capable of giving consent. High school students may or may not be able to. Any time that you are dealing with a minor of any age, however, the safest course is to obtain parental consent before interviewing or publishing materials relating to that minor.

As a practical matter, we are aware that newspapers do not always do this. 

At a minimum, you should evaluate the risk when interviewing or photographing minors. Interviewing the lead in a school play about the play or the high school sports star about a sporting event should be relatively low risk. With respect to other students and topics, it may be harder to evaluate the risk. There is always some risk that a photograph of a child playing in his classroom could alert a parent who is subject to a protection from abuse order of that child's whereabouts. Check with your schools to see if they have or seek parental permission for a child to be photographed or interviewed. Look at the subject matter of your piece, the community's knowledge of the individual, if any, and go from there. Is the story or picture likely to draw a complaint from a parent? Again, if you have any question or concerns, contact your newspaper's lawyer or feel free to contact the legal hotline.