Making a viral video: is it illegal to film someone without their consent?

Nowadays, finding someone who doesn’t know social media is hard. Social media platforms focused on the propagation of small videos and fast information are gaining popularity. For example, TikTok, which now is a huge platform for sharing videos, gives videos posted on it a great chance of going viral. 

In this blog, we’ll talk about what you need to know if you want to start posting videos on the internet or if you end up being in one without your consent.

What is a viral video?

A viral video is a video that gains popularity on the internet (eg through YouTube or TikTok), becoming an internet phenomenon. With the rise of social media, people all around the world have gained the ability to share videos and posts that are interesting to them. Viral videos are generally those videos that spread rapidly through social media as they are shared by thousands (if not hundreds of thousands) of people all around the globe. Viral videos can take various forms, including humorous clips, heartwarming moments, shocking incidents, creative performances, informative content or any other videos that resonate strongly with viewers.

Data protection laws and the Human Rights Act

Both data protection law and human rights law protect individuals’ privacy online. 

The UK’s data protection laws (eg the Data Protection Act 2018 and the UK GDPR) protect personal information about particular individuals. This is particularly important as the number of social media users increases and information about individuals can more easily be found, stored and used online, sometimes without the individuals’ knowledge or against their will. This can make those personal pieces of information not so private anymore. Data protection laws place restrictions on how organisations and other individuals can handle each other’s personal information. For example, they should rely on a ‘legal basis’ like consent or public interest for using others’ personal information. For more information, read Data protection.

The Human Rights Act 1998 requires that everybody in the UK has equal rights and freedoms. It contains a more general right to privacy, which protects individuals against unnecessary intrusion into their lives by other people. Individuals have the right to respect for their private lives (such as personal matters) under Article 8 of the European Convention on Human Rights (ECHR), which is integrated into UK legislation through the Human Rights Act 1998. Individuals shouldn’t, for example, have their pictures taken and shared without their consent if the images show information about their private lives. 

Why do I need to take precautions before posting videos on social media?

If you’re planning on posting videos on social media, you should take some important precautions first to protect yourself legally.

A great example of when precautions should be taken before uploading videos online is when filming ‘acts of kindness’. This is when an influencer records themselves doing a kind action and they also record the person who is receiving the ‘kindness’. The influencer may not know that they need permission to post somebody’s image on the internet. If permission is not obtained, the law may pose various issues to the influencer.

Everyone has a right to respect for their private life, according to Article 8 of the ECHR. If it can be shown that an action violated this right (for instance, if a video was recorded in a private location), this may help a person bring legal action to enforce their rights.

Additionally, in cases where a photo contains or is presented with personal data (eg someone’s image), the Data Protection Act and GDPR apply data protection principles to the photographs (eg photographs of people). In these situations, the individuals whose data protection rights have been violated can request that the person who posted the relevant content removes it or may be able to seek legal redress. 

An individual may be able to file a defamation lawsuit against a business or organisation that has exploited their image if it was used without their consent and has damaged their reputation. Under the Defamation Act 2013, in England and Wales, a defamatory situation happens if the publication of content has caused or is expected to cause harm to someone’s reputation.

If you’re an influencer and want to obtain consent to use someone’s image, to help avoid the above, you can use a Model release form.

For more information, read Image rights and General data protection regulation (GDPR) FAQs.

What else can happen if I don’t follow the law? 

Various problems can occur if you post videos online that don’t comply with the law. For example, if you breach data protection law or human rights law, you could be taken to court. 

Further, posting defamatory or discriminatory content or breaching copyright and other intellectual property laws can lead to legal problems as well. 

Is it always illegal to be filmed against your will?

In a public setting, it is not illegal to record someone without their consent. However, the manner in which this is done and in which the recordings are used may be illegal. It may be advisable for someone who wants to record in a public place to ‘hide’ the faces of those they are recording to guarantee that they are respecting their right to privacy.

The scope of privacy law is limited to situations where there is a ‘reasonable expectation of privacy’. This means that someone wouldn’t necessarily violate another person’s rights if they take a photo of them while on a public transportation system or in a different public setting, although they would do so if they were to hack their phone and steal private images.

Even if the publication of images of you is not covered by privacy law, you can take legal action if they are published in a defamatory way. 

If someone takes photos or videos you made and shares them without your permission, this could be an infringement of your copyrights. In this case, you can also take legal action. 

For more information, read Illegal video recording: 4 legal implications of taking videos without permission. Read How to run an influencer business to find out more about becoming an influencer. If you have any questions or concerns about making or appearing in a viral video, do not hesitate to Ask a lawyer.

Julia Pieretti