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If a student journalist receives consent from students to publish their medical or private information, can privacy laws like HIPAA or FERPA prevent the student journalist from publishing that information?

Question | Student Press
A few students at my school talked to our school newspaper about publishing sensitive stories about them. One story was about a student talking about her experience with cancer, and another was about a student who suffers from depression as a result of being abused. If the student journalist receives consent from these students to publish their medical or private information, can privacy laws like HIPAA or FERPA prevent the student journalist from publishing that information?
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There are laws such as the Health Insurance Portability and Accountability Act (HIPAA) and the Family Educational Rights and Privacy Act (FERPA) that prevent the publication of certain private facts. HIPAA prevents the publication of medical information, and FERPA prevents the publication of student education records. If a student journalist were to obtain a student’s medical or educational information fraudulently or wrongfully, they would likely violate HIPAA or FERPA if they published that information. However, if a student who is being interviewed consents to the publication of such private information, then there is no HIPAA or FERPA violation.

What type of forum the school newspaper will be considered will also determine what level of control the school has over the content of the published stories. A school newspaper can be a non-public forum, a limited public forum, or a public forum. If a newspaper is a non-public forum, then the school has a lot of authority over the newspaper and can limit the publication of stories it thinks are inappropriate, even if the subject of the story gave their consent to publish a story about cancer, depression, or some other sensitive topic.

The best policy before publishing a story is always to obtain consent from the person who the story is about. Getting consent is best because that means the journalist can’t get sued by the person who the story is about, but it also is the most ethical thing a journalist can do. You probably don’t want a private story published about you unless you're okay with it, so don’t publish a private story about someone else, no matter how juicy the story is, unless they say it’s okay. Get written consent on these sensitive topics if you can. One step further would be to get written consent from the parent if the student is under the age of 18.

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HIPAA protects private health care information from being released to the public. Your medical information is your private information, and only you, your doctor, and your parents (if you’re a minor) have a right to this information. However, nothing stops you from disclosing your medical information to other people if you choose. If a student chooses to participate in a story talking about their medical treatment for cancer, the school newspaper is likely allowed to publish the article even though it may contain private information. In this example, the student disclosed and consented to the release of that medical information. Several courts have stated that publishing medical information is offensive and typically not newsworthy, so it is critical to obtain consent before publishing anyone’s medical information. Without consent, a journalist may be held liable for publication of private facts.

Although HIPAA does not directly apply to news reporters, there are two scenarios in which HIPAA might apply to journalists: (1) if there was a wrongful act in obtaining an individual’s healthcare information or (2) state law barriers. Under the first scenario, a journalist likely violates HIPAA if they obtain and disclose health care information through false pretenses, misrepresentation, or fraud. For example, if a student journalist took a trip to the hospital to get the scoop on a student who had been involved in a car accident and represented that they were the student’s parent to receive the injured student’s medical files, that would be illegal and a violation of HIPAA. Under the second scenario, state law also may limit situations in which reporters can disclose medical information. For example, Michigan law requires that a patient must be aware of any disclosures of their health information and also must consent to all disclosures. Speaking to a journalist knowingly and voluntarily about a medical condition would constitute proper consent and disclosure in Michigan. If you're not from Michigan, be sure to check your own state laws to determine in what situations journalists may disclose other people’s medical information.

I know that FERPA protects private student records. Would this law prohibit a school newspaper from running a story with students’ real names who have been victims of abuse and who struggle with depression?

FERPA also governs the disclosure of private information. This law protects the privacy of student educational records and prevents this confidential information from being disclosed to the public. Additionally, it establishes certain procedures schools must follow when disclosing confidential student records to a parent or guardian. For example, your nosy neighbor Joe Schmo can’t just call your school and obtain your report card because that would be a violation of FERPA.

However, FERPA does not stop student journalists from publishing private information that uses students' real names, such as a story about students dealing with abuse and depression, because FERPA only applies to disclosing student educational records. This story has nothing to do with student educational records. Moreover, FERPA only applies to agents acting on behalf of an educational institution, like teachers, administrators, or other school employees. Student journalists do not fit into this category. So as long as the student journalist who wants to run this story obtained the information legally, consensually, and independently, FERPA will not prevent the journalist from publishing this information.

If you have more questions on FERPA, be sure to see our Q&A “Your Guide to FERPA.”

So what kind of stories can schools censor from school newspapers?

Although HIPAA and FERPA may not be able to prevent the student journalist from publishing sensitive stories about a student battling diabetes or anxiety, it is possible the school may prevent the publication of these stories, but only if the newspaper is a non-public forum. If a newspaper is a non-public forum, then the school has complete authority to regulate the content of the newspaper and could block whatever stories it wanted from being published. On the other hand, if the school newspaper is a limited public forum or a public forum, then the school is going to have a more difficult time regulating these kinds of sensitive stories. Student journalists can likely publish a wider variety of stories if the newspaper is a limited public forum or a public forum.

To determine what kind of forum your school newspaper is, see our Q&A “How do I know if my school’s newspaper is a limited public forum?”

Are there any other reasons a student journalist wouldn’t be able to publish stories about a student dealing with cancer, abuse, or depression?

Before publishing a story with sensitive information, a student journalist should always consider journalism ethics. Remember, receiving consent is always a student journalist’s best defense, but it’s also the most ethical thing a student journalist can do before publishing a sensitive story. Even if a student journalist wants to publish a story that may not be about private facts but may harm the reputation of the subject of the story or hurt that person in some way, the student journalist should really question if it's worth it to publish the story without consent.

Further, although no federal and very few state laws prohibit the publication of the names of minors, portraying a minor in an unfavorable light may subject the student journalist to a lawsuit. When determining whether a publisher might be liable for publishing information about a person younger than 18, the privacy interests of the minor must be balanced against the need of the public to know the information. For example, the name and details about the mental health treatment of an individual convicted of sexual assault at age 14 was determined by a court not to be an invasion of privacy because it was of legitimate interest to the public. However, in sensitive contexts the portrayal of a minor in an unfavorable light may result in legal action, especially if consent was not obtained.

The Education Writers Association (EWA) suggests several ways for a reporter to ensure that a minor’s privacy interests are being protected. One way is that the student journalist should be clear about their intentions before asking questions. Here’s an example. Let’s say you, a student journalist, are writing a story about mental health, and your goal is to help break down the stigma around having depression. You approach a student about the story and want to interview them about their experience dealing with depression. You should make it clear to the student why you are asking them about this--it’s to get rid of a stigma, not to make them feel embarrassed or to expose their thoughts about self-harm. This is important because you want them to feel comfortable and to know exactly what you are asking and why you are asking it, so they can give you honest information. Knowledge is key.

The EWA also suggests that journalists allow minors to take more information off the record than adults and that journalists do not publish a story that will add to the minor’s pain or trauma. Follow this link to view the EWA’s full guide:

Just remember, consent is key! And don’t publish something about someone that you wouldn’t want published about you, especially if you didn’t give consent.

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