An Administrator's Guide to California Private School Law

Chapter 10 - Privacy Rights Of Students And Employees

Factors that the courts examine to determine whether an intrusion is reasonable include whether the means used are abnormal and whether the purpose for intruding is proper. Not all intrusions are improper. For example, no right of privacy exists for matters or things within the public domain or in places one typically expects others to be. 1666 The final type of privacy tort involves use of someone’s name or likeness for commercial purposes without his or her consent. In California, this tort is enshrined in statute and specifically covers the use of an employee’s photograph or likeness in a publication without consent. 1667 The elements of such a claim are “(1) the defendant’s use of the plaintiff’s identity; 2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; 3) lack of consent; and 4) resulting injury.” 1668 Civil Code section 3344 authorizes recovery of damages by any living person whose name, photograph, or likeness is used for commercial purposes without his or her consent. LCW Practice Advisor Schools should include consent language to use employee or student photographs and likeness in employment agreements, enrollment agreements, or separately signed documents to avoid a potential claims. C. A DDITIONAL P RIVACY P ROTECTIONS R EGARDING C OLLECTION O F P ERSONAL I NFORMATION B Y W EB S ITE O PERATORS Both federal law and California state law have additional privacy protections relevant to a Web site operator’s collection of personal information. The federal Children’s Online Privacy Protection Act (COPPA) addresses the online collection of information directly from children under 13 years of age when done for commercial purposes. It does not apply to nonprofit organizations. The California Online Privacy Protection Act (CalOPPA) governs the online collection of personally identifiable information from users and/or visitors of a Web site for commercial purposes. It does not have a nonprofit exception. The Privacy Rights for California Minors in the Digital World, effective January 1, 2015, prohibits the on-line marketing of certain products to minors. It also provides a process for minors who post information to a site to have that information removed. These statutes will be discussed in more detail below. 1. T HE F EDERAL C HILDREN ’ S O NLINE P RIVACY P ROTECTION A CT (COPPA) Congress enacted The Children’s Online Privacy Protection Act (COPPA) 1669 in 1998 with its primary goal to give parents control over the personal information collected from their children online by operators of commercial Web sites and online services. 1670 COPPA applies to children under 13 and only applies to information collected online directly from children under 13 for commercial purposes . 1671 It is a strict liability statute. 1672 a. Who Is An Operator? The statute defines an “operator” as:

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