YouTuber’s Legal Obligations to People Caught on Video (YouTuber Law Series)

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Lior Leser, Esq.
Technology, Internet and Software Law

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The answer turns on two matters: (1) what are they doing and (2) what are you doing?

Let’s keep one thing in mind. People in fact have very few privacy rights over those things that they do in public.

Why? Its because we define privacy based upon a legal standard of “reasonable expectation”

When in public, what are people reasonable expectation of privacy?

usually the answer is very low.

Remember, if you are on private property, the property owner may set rules about the taking of photographs.

But in a public location and you can see it, you can shoot it.

That’s not a blanked statement. You can get intro trouble if your videos portray people in scandalous and false ways.

So … as you are filming, as long as the images you take of people aren’t offensive, defamatory or in some way represent an unreasonably invade their privacy, you don’t need their approval.

So ONE Take care not to portray people in a false manner that is harmful to their reputation.

TWO … sometimes audio recordings are a separate element from the video recording. In those states, you ability to record people conversations may depend on whether or not your state requires one or both parties to connect to the recording.

In situations where you are recording people but are not part of the conversation, you may have to ask yourself whether or not the individuals recorded have an expectation of privacy.

THREE … there are differences depending on the kind of video you are making. Is it commercial or not?

The First Amendment, while protecting most forms of speech and expression, is somewhat less protective of commercial speech.

What is commercial speech? promotional videos and advertisements are commercial. Dramatized films, documentaries and news are not commercial. Even though they may be sold for money.

Please understand, filming your daily vlog is not commercial, Filming you product reviews is not commercial. Filming your dramatized web series is not commercial.

and … as a general rules, if your video is of a commercial use you will almost always require that to get a person’s written permission before filming them.

FOURTH … even though you may be filling in public, you may still require a permit. Depending on the impact your filming may have on the surrounding population, your video may require filming permits. So you better check with your local government office two see if you may need a permit.

Please remember, an invasion of another person’s privacy is a “tort,” A privacy tort occurs when you breache the duty to leave another person alone.

So always ask yourself, the pope who I am filming, what is their “reasonable expectation of privacy?”

We will be happy to hear your thoughts

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