Darf Unterricht aus dem Klassenzimmer per Video übertragen werden? Was ist datenschutzrechtlich zu beachten, wenn Unterrichtssequenzen im Fall von Hybrid- oder Distanzunterricht abwesenden Schülern per Videosstream zur Verfügung gestellt werden sollen?
Hier einige konkrete Hinweise zu den aktuell gültigen Regelungen, die für entsprechende Entscheidungen hilfreich sein können (Stand 31.10.2020):
1) Regelungen zum Distanzunterricht
§ 19 Abs., 4 BaySchO ist die rechtliche Grundlage für die Abhaltung von Distanzunterricht, wobei Distanzunterricht die räumliche Trennung von Lehrkräften und Schüler/innen voraussetzt (alle Schülerinnen und Schüler; kein Wechselunterricht mit geteilten Klassen).
Voraussetzung für den Distanzunterricht ist die Anordnung des Gesundheitsamts (für ganze Klassen oder ganze Schulen bzw. einzelne Schüler in Quarantäne).
Es muss eine gleichwertige Teilnahmemöglichkeit für alle Schüler/innen bestehen (z. B. auch Telefoneinwahl).
Die genutzten Verfahren müssen den Vorgaben gemäß Anlage 2, Abschnitt 4 und 7 zu § 46 BaySchO entsprechen.
Wichtig:
Bei angeordnetem Distanzunterricht wird das Kommunikations- und Kollaborationswerkzeug verpflichtend vorgegeben und bedarf dann, aber auch nur dann keiner Einwilligung; über Freigabe des Videobilds können die Schüler frei entscheiden! Vom Distanzunterricht, wie oben beschrieben, ist die Zuschaltung Einzelner zum Präsenzunterricht zu unterscheiden! Hierfür ist die Einwilligung aller Betroffenen erforderlich!
2) Streamen von Unterrichtseinheiten
Zu beachten sind hier verschiedene Konstellationen:
Teilnahme am Unterricht zu Zwecken der Lehrerausbildung außerhalb des Klassenraums
A) Situation 1
- Schüler im Präsenzunterricht, Referendare/LAAs dürfen zur Unterrichtsbeobachtung aufgrund Corona nicht teilnehmen.
- Rechtsgrundlage: Art. 85 BayEUG, wenn die Referendare in einem anderen Raum der Schule sind.
- Technische Voraussetzungen: Direktübertragung: Daten verlassen die Schule nicht; von Klassenzimmer zu Klassenzimmer.
- Anforderungen: keine Aufzeichnung, keine Weitergabe an Dritte; nur für Ausnahmefall der Pandemie; nur gelegentlich, nicht regelmäßig!
B) Situation 2
- Schüler im Distanzunterricht, Referendare/LAAs in einem Raum der Schule oder außerhalb der Schule;
- Rechtsgrundlage: Art. 85 Abs. 1 BayEUG, Art. 19 Abs. 4 BaySchO;
- Technische Voraussetzungen: Abschnitt 7 Anlage 2 zu § 46 BaySchO;
- Anforderungen: keine Aufzeichnung, keine Weitergabe an Dritte, Ausnahmefall, auf die Fälle von § 19 Abs. 4 BaySchO beschränkt!
Wichtig:
Für alle anderen Fallkonstellationen ist noch nicht geklärt, ob sie – auch bei vorliegenden Einwilligungserklärungen – überhaupt zulässig sind! Daher ist hiervon eher abzuraten!
Natürlich sind sämtliche speziellen Situationen und die damti verbundenen datenschutzrechtlichen Fragen grundsätzlich mit den jeweiligen Datenschutzbeauftragten vor Ort zu klären!
Aktuell – KMS „Infektionsschutz und Unterrichtsbetrieb…“ vom 27.11.2020:
[…]
4. Live-Stream aus dem Klassenzimmer in den Distanzunterricht
Beim Wechsel von Präsenz-und Distanzunterricht kann die online-Übertragung des Unterrichts aus dem Klassenzimmer eine Möglichkeit darstellen, um die „Distanzgruppe“ oder auch einzelne Personen in Quarantäne trotz räumlicher Trennung ins Unterrichtsgeschehen einzubinden. Viele Schulen haben bereits auf dieses Mittel zurückgegriffen.
Dabei müssen neben pädagogisch-didaktischen Erwägungen auchdietechnischen und datenschutzrechtlichen Voraussetzungen berücksichtigt werden. Aus datenschutzrechtlicher Sicht gilt:
– Lehrkräfte: Eine Tonübertragung ist jederzeit möglich. Die Übertragung des Videobildes erfolgt freiwillig (u. U. auch nur zeitweise); eine Verpflichtung hierzu besteht nicht. Die Übertragung eines digitalen Tafelbildes oder einer Präsentation ist immer möglich.
– Schülerinnen und Schüler: Eine Einwilligung der im Klassenzimmer befindlichen Schülerinnen und Schüler (bzw. deren Erziehungsberechtigten) ist erforderlich, soweit Bild und/oder Ton der Schülerinnen und Schüler nach draußen übertragen werden. Ist z. B. durch technische Hilfsmittel sichergestellt, dass Bild und Ton der Schülerinnen und Schüler nicht übertragen werden, ist eine Einwilligungserklärung nicht notwendig. Aus technischer Sicht ist die Leistungsfähigkeit der verfügbaren Internetanbindung der Schule zu berücksichtigen.
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