You might be forgiven for thinking that videoing someone is as easy as pushing a camera or smartphone in their face and pressing Record. But it’s not quite that simple. Not least, you need to make sure you’re OK to use the video you’ve just shot.
People have rights, and amongst them is the right to privacy and to have a say in how their image or likeness is stored and used. This is especially so if the video they’re in is made public on social media, and even more so if their likeness is used for commercial purposes without their permission.
Get it wrong and you could find yourself in hot water under both the current Data Protection Act and the new General Data Protection Regulations (GDPR) due out in May 2018.
And GDPR is about to turn the temperature up. Considerably. In theory, fines for breaching the new rules could run into millions. GDPR is data protection regulation on steroids.
So, if you’re a videographer, or PR or comms professional trained in the art of producing movies on a mobile device, how can you make sure you keep out of trouble yet at the same time avoid the joyous art of video creation becoming a bureaucratic nightmare?
As most PRs don’t do investigative reporting, let’s look at what you can or can’t do in the context of a typical PR shoot: that is, filming pre-planned explainers and advertorial videos featuring staff members and sometimes members of the public, mostly in-house but occasionally filming in a public place.
Videoing members of staff – your own or a client’s – who have been tasked to assist with the production creates no problems of privacy, providing they understand you are filming them and why.
Their reasonable cooperation may be required under their contract of employment. If in doubt you can cover yourself by getting them to sign a suitably worded release form that grants you permission to use them in your video. As most corporate environments are controllable, the consent of anyone in the background can also be obtained relatively easily in the same way.
Things get more complicated when you film away from the corporate base and include members of the public in your video.
Under the European Convention on Human Rights and the Human Rights Act everyone has a right to privacy. And you may find this surprising but captured video ‘footage’ counts as personal data if the subject can be identified. So, the Data Protection Act says people should give consent before you use or store video of them.
The rigour with which this is applies varies according to the individual concerned.
For example, it will very rarely be acceptable to publish video of a child without their parent or guardian’s express written permission. On the other hand, it is unlikely that publication of video of an adult filmed carrying out an ordinary activity in a public space would be an issue under the law. It very much depends on the context of the individual case.
So where exactly do you stand if you’re making a video in a public place and members of the public are visible and identifiable ‘in shot’, even if they’re just passing through?
There are two officially accepted ways of ensuring you comply with the law.
One is to get the written consent of anyone identifiable in shot, even in the background. If this isn’t feasible, the alternative is to place signs to ensure people know what you’re up to before you start filming.
Now, this may be appropriate for a big crew on a well-planned and organised shoot. But if you’re putting together a quick video package on your phone against the clock, very possibly on your own and without support staff, it’s a nightmare. Are you really going to run after everyone who was in your shot waiving a release form, or carry warning signs? Of course not.
The only practical solutions are to literally focus on the essentials of the story and keep them big and close-up. Unless it’s vital, as far as possible exclude the background from the shot. The other thing you can do is to blur identifying features at the edit stage. It’s technically perfectly feasible to do this on most good editing software and apps.
It has been suggested that it’s a sufficient defence if the filming is obvious: people who don’t want to be filmed can then avoid the area. This argument had some merit when all video shoots involved big cameras, lights and accessories and multiple crew members and were therefore very visible. It is now perilously out of date. Who’s going to notice a single person shooting a video on a handheld smartphone?
Let’s hope the finished wording of the regulations gives at least a nod to current and upcoming working practices.
Is there any wriggle room in all this? It would seem so.
Under the Ofcom Code, it is acceptable for broadcasters to film in a general manner in a public place providing the footage is brief, incidental, and an individual is not engaged in a personal or private activity.
Section 32 of the Data Protection Act cuts a fair bit of slack to journalists, or those engaged in artistic or literary pursuits. Its purpose is to safeguard freedom of expression. Even if the recording or broadcast of material falls into the categories of ‘data processing or controlling’, there may be considerable leeway on the need to be compliant with the letter of the law – although there is no automatic right to exemption.
And in case you’re wondering, successive court cases have decided that the definitions of journalism and journalists, art and literature in this context is very broad. They could probably be reasonably extended to most PR.
You are also likely to avoid trouble if you show yourself aware of the issues discussed above, and willing to play fair. If someone approaches you with a complaint of unauthorised use or storage of their image on video, take immediate steps to put things right by pulling or editing the relevant material.
Same old, same old?
GDPR experts are still waiting for the fine detail of what the new rules will say, and how much stricter they’ll be than the current law. But it seems likely that, despite fears among some journalists, the exemptions and freedoms currently allowed to journalists and other communicators will continue under GDPR:
“A more specific understanding of how s32 will apply in the future will be gleaned from its provision in the new Data Protection Bill that’s currently before Parliament and will be enacted in the Data Protection Act 2018 when passed – and as far as I can see, the intent is to continue the s32 protection for (amongst others) journalists,” says GDPR expert Dave Baker of the Performance Plus Partnership.
This view that media freedoms are unlikely to be changed or eroded under GDPR is broadly confirmed by sources at the BBC.
Hints and tips
So, don’t panic.
But to make sure you stay on the right side of laws both current and upcoming what do you need to think about when you’re next out and about with your camcorder or smartphone?
- Get your prime talent to sign a release
- Don’t even think about filming children without a written release
- Try to avoid shooting people in the background by sticking to relevant closeups
- Where possible get signed releases, and advise people when you are filming
- Avoid filming people in situations which could be compromising or taken out of context
- If approached to de-identify an individual take immediate steps to do so
Do that and you should fine.