When we posted a 60 second video giving the answer to the question of, 'can someone record you without your permission?' across our social media channels, it very quickly, and unsurprisingly got over 100,000 views, simply because the answer to this question is full of myths and is unknown to many.
Like it or loath it, we are living in a digital age and recording and posting videos has become a massive part of every-day life; No matter how old you are, and at what stage of your life you are in, with over 98% of our population owning a smartphone, the temptation is always high to instantaneously record and share something funny, entertaining or shocking. TikTok, Instagram, Facebook and other popular platforms are crowded with video recordings, good, bad and indifferent.
But is it illegal for someone to record you, and to post, forward or to use that recording without your permission? What can be deemed as your consent, and what steps can you take if you do not want a recording of you to be posted or shared?
In this informative episode, we debunk the jargon, as Hatti Suvari and senior Barrister Tim Sampson bring you interesting, insightful and jargon free information, specifically covering 'individuals' recording other individuals, as always, in plain and simple English.
Get Legally Speaking With Hatti Suvari
Can Someone Record You Without Your Permission? What You NEED To Know!
When we posted a 60 second video giving the answer to the question of, 'can someone record you without your permission?' across our social media channels, it very quickly, and unsurprisingly got over 100,000 views, simply because the answer to this question is full of myths and is unknown to many.Like it or loath it, we are living in a digital age and recording and posting videos has become a massive part of every-day life; No matter how old you are, and at what stage of your life you are in,...
- Duration:
- 29m
- Broadcast on:
- 15 Jul 2024
- Audio Format:
- mp3
(upbeat music) - Empower yourself today with legal knowledge and follow us on Instagram, Twitter or Facebook to get access to jargon-free legal information in plain and simple English. Today's episode is supported by Red Bar Law, the go-to law firm for expert efficient and fast legal assistance, all at a fixed cost. Go to our website at redbarlaw.com. Hello and welcome back to our podcast at Get Legally Speaking. We are proud to be the UK's number one legal consumer podcast. Our legal conversation today will be about can someone record you without your permission? I am joined by Barista Tim Sampson from Lamb Chambers in London. Tim is a senior barista who is regularly instructed to deal with disputes in the county courts, high courts and court of appeal and also has considerable experience in ADR procedures such as adjudication, mediation and arbitration. Additionally, Tim lectures and writes on specialist areas of the law and he has taught on professional training courses run by the BPP University. Tim, thank you so much for joining me. - Well, having always a pleasure to be here of course, Happy New Year 2024. - Yes indeed, it will be well into the new year of the year this but yes, we're on our way as they say. But you know, we're living in a digital range and recording and posting videos has become a massive part of life. No matter how old you are and at what stage of your life you're in. I mean, it's quite shocking because 98% of people own a smartphone and the temptation of insultaneously recording and then posting or sending out something, you know, funny, entertaining or shocking when we see it is high. TikTok, Instagram, Facebook and other popular platforms are crowded with video recordings but is it illegal for someone to record you and to use that recording without your permission? What steps can you take to stop someone from using a video or a voice recording of you? When I posted a video out on TikTok on this topic it quickly got over 100,000 views which tells me people want to know more. In this episode, Tim and I will be bringing you interesting, insightful and jargon-free conversation on this important topic. We will be specifically covering individuals recording other individuals rather than businesses than as always in plain and simple English. Tim, given that this episode is about individuals and not about businesses, let's start by dealing with the obvious rules that separate businesses and the government having CCTV cameras everywhere to an individual recording someone else on, for example, a dash cam or ring doorbell or a personal mobile phone. What are the key bits there that we can just spit out because lots of people quickly go to the back that there's literally cameras everywhere in life now? - Well, there are cameras everywhere. I think one of the first things you have to appreciate is there's no such thing as a general right to privacy in this country. It's not so much the right to privacy. It's a right to what people can do with information about you and how they came by the information and what they do with it. - Yes. - But don't confuse that with a general right to privacy. Government and the police, they can put CCTV cameras up, round town centres for law enforcement purposes and that's all perfectly legal. Of course, the data that they capture is itself subject to data protection standards. It's being done for lawful purposes. That's all fine. Businesses can record employees. They can check employee emails. They can make video recordings of them. In a workplace, for example, a bank is perfectly entitled to have a CCTV monitoring tills to make sure there isn't a little bit of loose change occasionally finding its way into the wrong pocket. - Yes. But again, all that information is if it's recorded and processed, which it will be, that's subject to the data protection act and the GDPR regulations. - And then, and then, and then... - Sorry, so employers have to tell you they're doing it. - Ah, that's the privacy argument. You can't make secret recordings of people in situations. A very limited exception to do with serious criminal offences. But my view is, if there's a serious criminal offence being suspected, it isn't for the employer to start turning Sherlock Holmes and investigating it. Tell the police, let them investigate it because they have the powers to do so. - Yes. - For people to be making those recordings. - I mean, talking about police, you know, police wear body cam cameras and there's no particular laws or regulations that govern the use of those devices, you might use by the police. But as you said, they must be compliant with our laws. And again, we don't want to bore people with acts of law, but you've got the Human Rights Act, I mean, 1998, and in the data protection act, 2018. So, police officers actually does not need your consent to record you if you're suspected of a crime or during an investigation. But I think that nicely kind of wraps up the fact that government, police, enforcement do not really need permission to record you because they're trying to keep us all safe. And, but however, having said that, it's what they do with it, that matters. Because many people have asked, you know, if their employer can record them without consent in a work environment. And particularly if someone was not aware about their employer recording. So you touched on that and you said, your employer has to let you know that recordings are being made. - Yes. I mean, this raises a somewhat difficult issue. There'd been a number of cases reported in the press over the last couple of years where people have installed secret CCTV cameras in homes where they suspect the babysitter or people giving care to elderly relatives and misbehaving themselves. - Well, that's interesting, actually. - That's an employment situation. - Yeah, babysitters, elderly parents being cared for. That's really common, actually. - So strictly speaking, it's not lawful to record them secretly. But of course, you process the data to show that they are committing offenses, they're doing something to the child or they're stealing from the elderly relative. That processing of the data is itself lawful because you're doing it for a legitimate purpose. And it would of course sit very ill for the person who is caught with their hand in your granny's purse helping themselves. - Oh, thank God. - Oh, I have been secretly recorded committing a criminal offense. - Yes, technically that may not be lawful, but that's not going to be their primary concern of the court. - That's so key, right? Because what we're saying is if you're recording somebody, and we will, I think that's a really good example, the nanny and the care situation, if you're secretly recording them and nothing goes wrong, then it's not really allowed. It's not really lawful to do that. However, if you're secretly recording them and something has gone wrong and you want to use that material to say to the police, this is what this person has done or has been doing, then you're not breaking the law. That's so key. - Well, the problem is of course with all this, that recording systems and the ability to record and share progress technically far faster than the law progresses. - Yeah, I think most things progress faster than the law progresses too, wouldn't you say? - This has been a particular area where the law just, it finds it very difficult to keep up. And we'll touch on this when we get some of the other questions, but for example, the whole question of revenge porn. - Oh God, Steve and Bear, but Steve and Bear comes to mind. - That would be bad. - Yes. - But you start to sort of shift through the laws and go, well, here actually is this made criminal. It is now that it was only a criminal in 2021 by an amendment of the 2015 Criminal Justice and Courts Act. - But this is it because online life has given everybody the ability to share information so quickly and people thrive on how many views they've had, how many likes they've had. I mean, as get legally speaking, we really want people to have views and likes of what we're doing because we know the information is getting out there. But there's people that are doing it that's not actually hosting something else that's, you know, they're supposed to post out or with the other person's consent because the big question is, does an individual need someone's express consent when recording them to share the information? For example, and as we're saying across social media, would the person who recorded the information be breaking the law if they did not have consent to record and share? And what about if the recording took place in a public place? But yet the person that was recorded says, I do not want you to share that. I do not want you to send that around. - Right. That's a basket of questions. - Yes, it always is for me to, sorry. Let's just say you take a clip, short video, clip, you're a pop concert and you just, the other people in the crowd and you share that on your Instagram account because you're all very excited. Technically, the people you have identified, you may not have their consent to share it. But the reality is they're very unlikely to make any complaint about it. - This is not really harmful content, is it? You're in a public place, there's lots of people in the background and you're taking a video of someone perhaps in front of that person or of the stage. But you know, there's situations and I know this is going to sound what you see where people might not have meant to be at that concert. Maybe they're not meant to be with a person they were with at that concert or whether they were not supposed to be there for whatever reason someone young didn't tell mum and dad where they were going and they did, but that having said that, they'd have to discover that it's online and then they'd have to ask for it to come down, I guess. - You'd have to, again, it comes back to the point that there is no such thing as a general law of privacy in this country. So meaning because you would have popped a concert you shouldn't be there, isn't going to be good enough reason. But the processing of the data has to be for lawful purposes because once you are an identifiable individual, it is data. And if you process it by retaining it and putting it somewhere else, like on Instagram, you've processed it at the very least you can ask the person to take it down. Whether or not the ICO very unlikely or anywhere else could enforce you to take it down is another matter. However, maybe this is the point where we move from the public arena to see why now this is a different matter. There are two issues here. The first one to touch on is things like ring doorbell where you can get a recording of sound and video. You're perfectly entitled to have such things. The ICO website makes absolutely clear they are lawful devices. - Let me just tell my listeners, ICO is the Information Commissioner's Office who are part of the regulatory bodies that regulates what we can do to some degree. - And they help police the whole area. But you have a lawful system of recording people. They often don't even require the bell to be touched. It's simply a motion sensor camera. That's all fine. You can have it on your own property. The problem is what happens when it's recording beyond the boundaries of your property. And you are therefore recording people outside of your house, not on your property. Now that information is data clearly. So you record someone walking down the street for somebody else and you record their conversation. That's their data. They can ask to see it and ask you to remove it. Because you're not, yeah, there's no proper purpose for you processing that data. There's another level to this where you deliberately train cameras from your property onto a neighbor's property. - Yes. - We're going to be playing hard, for example. - Harassing them. There's been very few actual cases that have gone all the way to court on this, but your potential claims are nuisance, harassment, and they've breathed protection out. - So that's somebody against the person that's recording. So if your neighbor's recording you in your garden, for example, 'cause they've set up a camera and their back garden, it shoots straight into your living room or straight it, or but you're on their fence, straight into your house to some degree, then that is not actually acceptable, right? - Well, firstly, it's very easy to show that they are taking information about you that's being processed for the purpose of the day for the protection act. You can ask them to stop doing it, and more importantly, they can have to delete or remove any content that involves pictures of you. Harassment is a course of conduct, which is intended, and there's various words, it's used to torment somebody. - Yeah, because it could be a rat, it is harassing, isn't it? And it takes away your right to your private life, because if you're in your, it violates that, doesn't it? Because you're in your space, you might be in your garden front or back wherever, then somebody else is recording you. And it's clear as day to me that somebody else should not be allowed to forget whether they're going to post it or not. The fact that they're actually recording and harassing you by doing that is not allowed, full stop. I don't think the police are going to be entertained with that. - And the courts. - And of course, you've got both the civil and criminal sections of the protection from harassment act. But yes, this is where you've definitely got to, if there is a course of conduct by your neighbor using recording devices to harass you, rather than for any lawful purpose, for example, deterring burglars, then you can stop them. Newscence requires you to do something that is lawful on your land that impacts on the neighboring land. So it's going to be fact sensitive as to what you're doing, whether it's actually technically a nuisance. - So what about you're with somebody in your home, you've invited them into your home, they're known to you, they start recording you doing something, you could be doing a silly dance or something, and they just start recording you in your home. And they want to pass that all over the in social media. And you say, I don't want that online. I don't want that to go out. That was recorded in a private setting. So my understanding is somebody cannot record you without your consent in a private setting to keep or actually use that because you were entitled to privacy, to expect that what you're doing was going to be kept private because you're in a private setting. - Well, again, it's a very gray area. - No. - You can expect for privacy, what the law can focus on is what do you do with the recording? - Yes. - And whether that is being processed and used for lawful purposes. If it isn't, then you can stop it rather than say, this is a question of privacy. I mean, just take another example, I was looking at the Civil Aviation website today and because drones are a huge problem with cameras on. - Yeah, yeah. - You can apply to someone's house, look down into their garden and see people and record it. - Yeah. - And the Civil Aviation Authority doesn't make clear that it would infringe someone's privacy quotes, unquote, without actually explaining that whether that's unlawful is another matter and how it would be unlawful. But again, data collected in that manner is subject to the Data Protection Act. - Well, they do. I mean, with Steve and Bear, the reality star, he maliciously used an explicit recording of his then-girlfriend. He was criminally charged for it for posting revenge form. We mentioned it earlier. And he served 11-month sentence, prison sentence, I think he had 21 months in total or 22 months in total. So I think that sent a really loud message out there because there is so much, you know, people bribe other people for videos that they've taken off them and they say, well, I'm going to bribe you if you don't give me this or if you don't do this, I'll be posting this out. But this really sent a big message out because I don't think this is the first time that somebody is posting some recording or somebody else that's been taken in their private setting in their home or in a private setting in anybody's home and actually said, right, I'm posting this out to get back to me to maliciously. That's when it becomes illegal, right? - Well, what's now required for a revenge porn offense is that it is an intimate picture, which means something that you would not generally see publicly. And you must either publish or threaten to publish it without the consent of the individual being recorded and for the purposes of causing them embarrassment or distress with downfall, sending a video of sexual nature to their employer. - Yes, or even if they're exposed, you know, they might have been getting dressed. Somebody might be getting dressed or doing something funny at home in their pajamas or something which is not something that they would want to go out, right? - Yeah, not something that we'd generally seen in public. - Yes, well, there's lots of things we see in public, these days, Tim, but I do get what you're saying, but what laws are essentially being broken when a recording of someone is shared without consent and say if someone else shared the information but didn't record it, that person would be equally liable to get in trouble, wouldn't they, with the law? They didn't record it, but they want to share it? - Well, if we're talking about just what you might call a normal video clip of somebody without any intimate content we've looked at that, it's not the most easy, if it's got any intimate content, yes, anyone sharing the information again for the wrongful purposes is just, you're as caught in the chain of liability. - Yes. - And also there are copyright issues because of course, irrespective of what the content is, the copyright in the picture, sound recording, the video clip belongs to the person that made it. - Oh, does it belong to the person that it's actually of? - No. - Interesting. - But they have no rights whatsoever in the copyright because the copyright invests in the person that makes the copyright work. It's the author, it's always the owner, unless it happens to be you're an employee and you're doing it on behalf of your own. - But it could be, for example, something that you're saying to it on camera that you didn't want everybody to know about. So it could be something that will damage your reputation, you could lose your job over it, you could lose, you know, you could suffer a lot of distress if people, if it got out and you're saying to the person that recorded it, I don't want this to get out. It's malicious if you do that, I'm gonna suffer, I'm gonna have damages as a result of that. That's the thing you can go and report to the police, isn't it, and say, look, I don't want this person sending this information out. - But it wouldn't be captured as a revenge porn issue, obviously. And the question is, what would the police's response to the other? So this is a civil matter, it's data protection. You're gonna have to enjunct them to stop them distributing it 'cause they are doing something, they're processing data about you without your consent in a way that is not for any lawful purpose under the GDPR regulations. - Yes, yes. - That's a substantial effort. By the time you've got around and say, I'm gonna go to the court and get an injunction, it's gonna be posted on six social media sites and be around the world in 30 seconds. - Well, that's the thing, isn't it? That's the thing, if somebody's already posting it out, you're trying to legally do something about it because let's be clear, it's largely a civil matter. If you want to get somebody to take something down that isn't explicit or criminally, you know, exposing a situation or something like that, and then it becomes a criminal matter. If it is actually malicious and explicit, you know, for those reasons. So, you, I mean, to seek damages, you've got to show that your privacy's been breached, you've got to show losses, but like you say, it can take a very long time, couldn't it, to go and get an injunction very quickly, even a quick injunction to stop that person continuing the distribution or asking for it to be quickly taken down before-- - Yes, it is, once it's gone out of hands of the individual that made the video and it's ended up on social media sites, you've lost, you've then got to chase down all the platforms on which it appears. - And I like that. - And ask them to take it off. And yeah, most of them will, if told, certainly told to do so by the court, they'll take it off, but you've got time, expense, difficulty, and it isn't going to happen instantly. It's going to take weeks or months to get to take down notices dealt with. So you are, it's not a simple matter by any means. - Yes. - Which is why I said it out. You know, this is a difficult area. And there are many gray areas in the law here is to precisely what you've got to prove. When there are certain criminal offenses, revenge porn, intimate images of anyone under the age of 18, for example. - Yes. - In other words, clear about that, the answer is no, you shouldn't have them. There are no defense, proper defenses for an adult to have images of child under 18. - But even the child having images of another child is illegal. I mean, you know, not many children know that. Some people-- - There's a bit of an exemption, the 16 and 17 year olds, if the pictures are taken with consent and it was shared between the people in the pictures. If they're that shared side, then the problem is that those are into the images of a child under the age of 18 and therefore they should not be published. Consent isn't the relevant test. - Yes. - If the images are under the age of 16, then consent and everything else goes out the window. They simply should not be made. It's a criminal offense to make, share or retain such images in any circumstances. - Okay, so what initial steps can someone take to prevent somebody from using a recording they've obtained without their permission to post it online? What's the initial steps? - And I would say firstly, go to the police. Some report it now. I have been reading, you know, comment after comment with people saying, I reported something to the police. The police are not doing anything about it. They're not doing anything quickly enough about it or they're not interested about it. What advice can we give people on this, Tim? - Going to the police isn't going to be particularly helpful because the police can only operate in the sphere of criminal offenses. Most of what we've been talking about today are civil matters. Data protection, harassment, although there is a subset of harassment that is criminal, most people deal with it in the civil side and nuisance. And then there are various copyright issues as the ownership of the actual works. So in fact, it is not easy. Other than data protection rules, where you can say, this is data about me, I do not want you processing it. You must not put it on social media or it's gone on social media. I want you to take it down. But again, it's still for you to pursue that. You can make the ICO, but they do their best, but they're not going to be chasing down individuals squabbling about an image that went up on Instagram. They don't have those resources. You may not want it up there. It's not going to be their primary concern. So it's, I mean, the best you could say is, don't get yourself in a situation where you're recorded, doing something. Prevention is better than cure. I've been hearing that all my life. I mean, I guess to get into it, if somebody, I think the police is the first thing, reported a police may say, look, this is a civil squabble, as you said. It's between you and your friend and you and your colleague or whoever. It's nothing to do with us police, 'cause it's not a criminal. We don't find what they've done as a criminal activity. If it's not militia, if it's not explicit. By all means you could, you know, go to a lawyer and get them to write them a letter, a very harsh letter that will obviously cost money. I would contact the platform straight away and just report it as offensive material that you, and private material that you don't want them to be exposed. It's about you trying to start those sorts of conversations, you know, because it's not a very straightforward, like you said at the very beginning. Our laws have moved too slow in line with actually how fast technology and how fast we have been given the ability to share information online. - Yeah, and that's before we get into the whole realm of AI. - Oh, my God. - And actually starting to manipulate these images. - You didn't say those two letters. That's not even a podcast on episode, episode. That's a series of episodes on their own. Do you know, I was contacted by a AI company who said, we could use one of your episodes and give you a hundred more and it'll sound exactly like you. And I said, no thank you, not yet. Do you think I'll be looking back and thinking of what a dinosaur I am in this day and age team for saying that? - Well, possibly, but you could imagine the situation where someone did take, just look to the video of this recording and use that as the basis to make new material. - It's happened. It's happened to celebrities already where they're half gone. - It's at you, outside me. - Yeah, and just said, it's not me, I didn't post that. I mean, goodness gracious, because sometimes I can't even find the actual person who created that. - Yeah, but what do you do about it? It's not your data because it's not actually you. I mean, in terms of marketing, there are rules about false attribution, but where does the more cover? Oh, there's always a course yet again. - Which jurisdiction do you look at? Because the internet, I could be looking at something at the same time someone in America is, or Australia is, or Europe is. So if you don't know where the creator of the content is that's not supposed to be out there about you, on which door do you knock? Which police door or which jurisdiction do you actually think where on earth do you start with that? - Well, yes, and that's assuming that you're actually dealing with the jurisdiction that might have laws that deal with it at all. - Anyway, yes. - I mean, there are jurisdictions that maybe don't have very effective data protection rules, but host servers that contain information that you want taken down. Then you want to go to the internet, service providers in the UK and say, "I want you to block this information." - But that will only be in the UK. And as we know, you put something online, almost everybody everywhere can get access to it. There are a few countries which don't have certain platforms there perhaps, or, you know, internet services, but it's frightening stuff, isn't it? It really is. It's a big topic. There are laws out there that protect us. However, I think the bottom line is in terms of something civil, so something that's not malicious in an explicit or criminal way, is you have to chase it down as a civil matter to get it actually out of the ether, off the internet, deleted and all these sorts of things. But I think you're absolutely right. I know, as I said at the very beginning, the temptation to record is so high for many people at that moment and at that time, it could be seen funny or interesting or exciting. But I think the best way to actually protect yourself is don't record it. Don't have it ever recorded. Don't even go down that road. But of course that is difficult and may not see the right thing at the time the recording is made. Yeah, no, I get it. Totally get it. Tip, that's all we've got time for. So thank you very much for joining me today again. Well thank you Hattie, it's always a pleasure. Don't forget to click and subscribe to our podcasts. We have over 160 to choose from. You can find us on TikTok, Instagram, Facebook, LinkedIn and YouTube by searching get legally speaking. Also visit our website at get legally speaking.com. Thank you for listening. Empower yourself today with legal knowledge and follow us on Instagram, Twitter or Facebook to get access to jargon-free legal information in plain and simple English. Today's episode is supported by Red Bar Law, the go-to law firm for expert efficient and fast legal assistance all at a fixed cost. Go to our website at redbarlaw.com. You