Privacy, performance and the public
When speaker and author Ed Gillespie tweeted a photo of topless man working on his laptop on the train in a heatwave, it went viral. But it didn’t actually breach the man’s privacy rights, because there is no expectation of privacy in a public place, according to the law. The person in the photo saw the tweet and replied: “Ed, I’m not sure why you felt entitled to photograph me and share it on Twitter without my permission, nor why others feel entitled to comment”, prompting Gillespie to delete it and apologise. Unfortunately for the man, the image had already been republished by the Mail Online, The Metro and The Sun.
Either way, Gillespie was the copyright holder of the photo. Copyright is a legal right that gives the owner the power to control the use of their content, including photos, videos and correspondence. This is how Meghan Markle won her case against a newspaper who printed a private letter that she wrote to her father.
The copyright holder is usually the person who took the photo, made the video or wrote the letter. If your own photos or videos are shared publicly by someone else, you can ask websites to remove the content or sue them for copyright infringement. This might seem strange because we share other people’s content on social media all the time, but legally the rights holder is whoever took the photo – and copying it without permission is technically copyright infringement.
If someone else takes the photo or video, they have the copyright. This has been at the heart of cases against celebrities, including Gigi Hadid and Khloe Kardashian, who shared photos of themselves taken by paparazzi on their social media channels. The photographers, who owned the copyright, sued them. The cases settled out of court. Although these are US cases, the laws are the same in the UK.
If you are being filmed, other UK rights that could come into play are performers’ rights. These can stop someone recording a live performance without permission and can stop unauthorised copies of their performance being shared. This right only applies if you are acting, singing, dancing or performing a literary, dramatic or musical work.
The legal rules on what does or doesn’t count as a performance are quite vague – magicians, clowns, jugglers, impersonations, interviews and catwalks probably count but sports performances do not. Some argue that it also includes improvisation, so you might even have a performance right if you are filmed having a tantrum in public. And it doesn’t have to be a paid performance to qualify.
You’ve gone viral – now what?
If someone is threatening to share – or has shared – explicit images or photos of you online, then this is a criminal offence and you should report the incident to the police.
If someone has filmed you in your home or a private setting where you have a reasonable expectation of privacy, this could be a breach of your right to private life. If someone takes photos or videos made by you and shares them without your permission, this could be a breach of your privacy or infringement of your copyright. In these cases, then it’s up to you to take legal action.
Privacy is a qualified right, meaning that it can be breached under certain circumstances, such as if it is in the public interest. This can be a useful defence for newspapers publishing intimate photos of high-profile politicians whose behaviour may reflect something important about their leadership.
Social media platforms also allow users to submit takedown requests if you think that someone’s content breaches any of your rights explained above, or doesn’t follow the platform’s community guidelines against bullying, harassment or hate speech. In cases where you’ve been photographed or filmed publicly that don’t involve explicit content, this is currently still the best course of action for immediate resolution.
