RAQs: Recently Asked Questions

Topic: Request to remove scanned yearbook pages - 11/04/2020
I received a request from a former student of [a local high school] in which her name appears on a...
Posted: Wednesday, November 4, 2020 Permalink

MEMBER QUESTION

I received a request from a former student of [a local high school] in which her name appears on a yearbook page citing student activities. As the page is part of a whole PDF of the entire yearbook, "removing her name" would require taking down the entire yearbook.

If the library that scanned and uploaded the yearbook to the internet received permission from the high school to do so (the yearbook is tagged as In Copyright) does the student have a reasonable request?

 

WNYLRC ATTORNEY'S RESPONSE

At "Ask the Lawyer," we have tackled "yearbook questions" before: in 2018[1] we addressed patron requests to copy physical yearbooks in a library's collection, and in January of 2020[2] we addressed using scanned yearbook images to illustrate a commemorative calendar. [3]

But I have been waiting for this question for quite some time, and I am sure this scenario has a familiar sound to many readers.

"Yearbook scanning"—the creation of digital versions of yearbooks previously available only in hard copy—has been happening for quite a while now.  However formal or informal such efforts might be, the end result (if made accessible) is a searchable, highly accessible collection of images of people in their formative years[4], who for whatever reason, might see the increased access to their former images as problematic.

Although we don't know the motivation of the person asking the member to remove their name from a digitized yearbook, this scenario shows the apex of this concern: a request to be removed.

At this "apex," a person can make a simple, single request to be removed.  Or, they can be persistent about it--making multiple requests, calls, letters, etc.[5]  Or, if they are available, they can make legal arguments.

I can think of several "legal" arguments a person could bring forward to remove their name from a yearbook in the manner described by the member:

  • They are a victim of domestic violence trying to elude an abuser.
  • They are a victim of stalking trying to elude their stalker.
  • They have specific safety concerns based on the general public's easier access to the content.
  • They have legally changed their name and identity for personal reasons.
  • They have informally changed their name and identity for personal reasons.
  • They feel the use of their image is commercial (not likely if the poster is a not-for-profit library that isn't charging for the content).
  • The content is defamatory.[6]
  • The content is the result of a crime.
  • They have been the victim of identity theft and are attempting to optimize their privacy.[7]

Of course, asking for the "legal reason" a person is requesting removal from a digital, online yearbook puts the library in the uncomfortable position of having to evaluate the validity of the answer.  Let' not go there just yet; instead, let's take a closer look at the member's question:

If the library that scanned and uploaded the yearbook to the internet received permission from the high school to do so (the yearbook is tagged as In Copyright)[8] does the student have a reasonable request? [emphasis added]

The member has used a very, very important phrase to frame this question: "a reasonable request."

"Reasonable requests"—that is to say, requests that might not have slam-dunk legal footing, but still might be a good reason for removal—cannot be analyzed in a vacuum.  In this context, to determine if a request is "reasonable," it must be assessed against the backdrop of the hosting institution's mission, the purpose of the digital collection, and the values and ethics governing both.

That is why for libraries, archives, museums, and historical societies digitizing old yearbooks and other content that can impact living, breathing people, I advise every institution adopt a policy that 1) confirms that the goal of a digitization project aligns with the mission of the institution; 2) confirms how the content will be accessed (will it be added to the catalog to be checked out as an e-book, or be openly accessible as an online archive? etc.[9]; 3) confirms the ethics applicable to the project; and 4) creates an ethics-informed process for raising, evaluating, and acting on any concerns about the content.

For readers out there working in established archives, this ethical framework for selecting, preserving, and enabling access to archival content is already built into your institution's DNA.  However, for many libraries or smaller institutions that are now able to create online collections of easily accessed content through scanning, either to hold on their own servers, or to contribute to a larger initiative--with access unmediated by a library card or on-site access--it may be an area ripe for development. 

For those institutions just arriving at this phase, here is a short sample policy to govern the creation of digital content intended for open access:

 

ABC Library Policy on Institutionally-Generated Digital Unmediated Content[10]

 

 

Policy

Although not the primary mission of the Library, from time to time, the ABC Library will create digital versions of content with the intention that such content be made available to the general public via the internet without the mediation of membership in the library or being on the library's premises.  This content can be derived from items in the library's collection, or be generated from material borrowed by the library from another institution as part of a digitization project. 

 

For purposes of this policy, such content is called "Institutionally-Generated Digital Unmediated Content" or for short, " Unmediated Content". 

 

The purpose of this policy is to ensure the ABC Library's creation of such Unmediated Content, whether considered part of a collection or later included in an archive, is consistent with the Library's mission, values and ethics.

 

Mission

The ABC library's mission is to [INSERT].  The ABC Library's creation of Institutionally-Generated Digital Unmediated Content is consistent with this mission because [INSERT].

 

Code of Ethics

The ABC Library recognizes that due to the broad, direct access it can provide, the impact of Institutionally-Generated Digital Unmediated Content can be different from the impact of library collection content accessed by borrowing on-site access at the library.  Therefore, the Code of Ethics governing the ABC Library's creation of such Unmediated Content is the [NAME's] Code of Ethics.

 

Procedures

Any concerns related to the ABC Library's creation of Institutionally-Generated Digital Unmediated Content shall be evaluated per the above-listed Code of Ethics. 

 

Institutionally-Generated Digital Unmediated Content projects with content that depicts (possibly) still-living people, minors, and sensitive subject matter shall be evaluated per the Code of Ethics prior to the creation of the Unmediated Content.

 

To ensure adherence with these Procedures, ABC Library shall ensure an "Ethics Statement" accompanies all Institutionally-Generated Digital Unmediated Content created by the ABC Library.

 

Ethics Statement

To ensure awareness and consistent application of the Library's mission and Code of Ethics at all phases of the creation and access to such Unmediated Content, all such content shall be accessible with the statement:

 

"This content is governed by the [INSERT] Code of Ethics.  Concerns that any content violates the right of any living person, or that Code of Ethics, should be directed to [NAME] at [CONTACT INFO]."

 

Responsibility

The board of trustees maintains this policy and evaluates and revises it as necessary. 

 

[INSERT POSITION] is responsible for oversight of this policy and procedure.

 

All employees and volunteers working on digitization projects must follow this policy and procedure.

 

Now, with those essential considerations backing us up, here are my thoughts on the member's questions:

A request for removal or redaction of digitized content should be evaluated against the mission and values of the library that created the digital content, the purpose of the digitization project, and the ethics governing the project.

In this case, if the person requested removal without giving a reason aligned with ethics of the library and/or the project, the request should be denied.  On the flip side, if the reason for the request does align with the relevant ethics, it should be redacted or removed.

Here's an easy example of this playing out in the real world:

Every "Code of Ethics" I have seen governing libraries and archives requires that the institution follow the law.  Therefore, if there is a legal reason for removal, it should be done.

Here's a less easy example of this playing out in the real world:

If the request is more vague, like "I just don't want people to be able to find out information about me,"[11] your institution needs to look at the values and ethics it has adopted.  Does personal autonomy and concern for the privacy of living people get a high priority?  If the answer is "yes", there should be a process for redaction or removal.  If the answer is "no," with more priority placed on the integrity of the material, unless there is a legal reason compelling removal, the answer should be, "Sorry, our role is to preserve and make accessible this record in its original form" (or other language regarding integrity of the records, taken from your library’s Code of Ethics).

Personally, although I don't think my yearbooks have anything to hide, I like the option of being able to remove myself from the record until I am dead.[12]  But in saying that, I am expressing a value, not a legal right, and value judgments are harder than legal conclusions.  That is why requests not rooted in solid legal reasons benefit from: a) the library having a strong, consistent guide, like a Code of Ethics; b) applying that guide consistently; and c) ensuring the library has the technical ability[13] to implement your institution's decisions, which are all critical.

Thank you for bearing with me on this answer, I know it is intricate, and perhaps more than you signed on for!  The steps I lay out in this answer are meant to be practical, easy to implement, and designed to help your library document that it is doing its best to balance preservation and access to documents with consideration of privacy and ethics.  That is no simple balancing act, but since requests like the one sent to the member are only likely to increase, it is a good thing to be ready to do.

 



[3] The reply to the 2020 question, after walking the reader through a suggested analysis of the content, states: "This analysis was done because yearbook projects bring up issues of not only copyright risk, but privacy and social issues."

[4] For libraries considering creating a formal archive of digitized yearbooks, this "Ask the Lawyer" answer regarding creating digital archives that include images of children discusses the interplay of legal and ethical issues.  Of course, a yearbook presumes a certain level of both awareness and willing participation, which not all images of minors do.

[5] It pains lawyers to hear this, but not every problem is solved by threatening to sue.  Letter campaigns, online petitions, public shaming, reaching out to people in power...these are non-litigious routes to get relief from problems, too.

[6] I don't just mean that the content makes them look bad, I mean it genuinely meets the criteria for defamation in New York, which is very precise.

[7] One thing the information in old yearbooks can do is help with social engineering of scams to defraud and/or commit identity theft.  "Hi, it's me, Angela, from your high school volleyball team!  Remember, with the red hair?  Yeah, it's me! Hey, can you cash a check for me...?Yes, this is exactly how it happens.

[8] Just to confirm: this question has nothing to do with copyright (sounds like the library got the right permission to move ahead with digitization), and has everything to do with the "right to privacy," laws barring use of identity-based content, and ethics.

[9] The difference here is critical!  A yearbook that is digitized and available only as an e-book to be checked out by a patron is very different from an open collection that is available to access and search without borrowing privileges.  This is one reason why archivists have different codes of ethics than librarians.

[10] You will note I do not call this content "archival" content.  As every library council member out there knows, libraries are not archives (although they might have some archives).  That said, in this case, the creation of the digital content is likely to end up in an archive—or a collection that functions like one—and the ethical considerations align almost exactly.  For that reason, the Code of Ethics of a body like the Society of American Archivists might be a good go-to for your policy.  It wouldn't hurt to have a professional archivist on board as a consultant for help evaluating concerns, too.

[11] Remember the person faking being on the volleyball team.  This is not an outlandish concern.

[12] I am already ahead on this.  Having a hatred of head shots, I boycotted my senior picture, a decision that only makes me happier as the years go by.

[13] As the member points out, "removal" in this instance poses a challenge.  In this case, it would be good to explore if "redaction" through an addition of a black bar to the PDF, with an appropriate footnote citing the Statement of Ethics, is possible.

Tags: Copyright, COVID-19, Digital Access, Digitization and Copyright, Yearbooks

The WNYLRC's "Ask the Lawyer" service is available to members of the Western New York Library Resources Council. It is not legal representation of individual members.