Justice chancellor: Filming in class may be lawful as proof of bullying

Chancellor of Justice Ülle Madise.
Chancellor of Justice Ülle Madise. Source: Kairit Leibold / ERR

A school pupil could legitimately film a teacher's activities without the latter being aware of it, in some cases, for example when proof was required of a teacher bullying the student, Chancellor of Justice Ülle Madise says, with reference both to European Union regulations and to domestic precedent.

One individual had approached the Chancellor of Justice expressing concerns along the opposite lines, ie. where several teachers had allegedly been intimidated by parents after students had secretly made such recordings in class, while the parents had later "maliciously used this recording against the teacher", ERR reports.

The applicant asked Madise whether the student was allowed to record a class and whether this is in line with the rights of the teacher and the other pupils.

Madise acknowledged in response that such a situation can be particularly disturbing. 

She wrote in her response that: "In order to achieve peace of mind in school classes and to minimize the tension that clandestine recording of lessons can cause for teachers, the school can establish rules for the use of mobile phones or other recording devices in its code of conduct. Students will be obliged to follow the school rules."

She also stressed that apart from establishing these rules, schools could also consider explaining to students and parents the principles of personal data protection and the reasons for establishing rules. "In this way, one can contribute to the adoption of a mutually respectful communication culture in a school. The school, as the teacher's employer, must stand up for that teacher's safe working environment. Among other things, an employer must implement measures to prevent health damage resulting from psycho-social risk factors," the chancellor added.

At the same time Madise added that recording in a school class is not necessarily illegal.

"An audio recording on which an individual can be identified is classified as personal data. However, if the student uses this recording solely for personal purposes and does not distribute or publicize it in an unauthorized way, for example on social media, then these personal data protection rules do not apply," Madise said, referring to point 11 of the EU's General Data Protection Regulation (GDPR).

According to the GDPR, in certain cases the legitimate interest and the need to prove harassment may outstrip the data subjects' right to privacy.

Madise also pointed to domestic precedent (link in Estonian) which she said demonstrated secret recordings can be used to assert a person's rights.


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Editor: Andrew Whyte, Mari Peegel

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