In Brief:
- The recent ‘viral’ interaction between pianist Brendan Kavanagh (aka Dr K) and members of the public in St Pancras Station in the United Kingdom with regards to live-streaming footage is a useful illustration of the interaction between personal rights to your image, rights to photograph or video in public spaces, and how national laws differ.
- The ease of access to a global audience via social media, and the potential ‘permanence’ of photographs or videos posted online, means that a photograph or video of a person can spread around the world and be very difficult to remove. Countries have taken different positions as to whether taking a photograph or video of a person in a public place requires the consent of that person. It is essential to understand these differences and the applicable laws of a country, whether you are living there or visiting.
- For the UAE, and many countries in the Middle East region, the right to privacy and the reputation of an individual has been enshrined in national laws for many years, and long before the rise of social media. In practical terms, it is illegal in the UAE to take a photograph or video of a person without their consent, even if in a public place.
Background
Brendan Kavanagh (also known as Dr K) is a British pianist who has established a social media following based on his popular ‘boogie woogie’ piano performances. This is primarily through using pianos in public places, in this case, at St Pancras Station in London, United Kingdom. His performances are recorded, and often live streamed, and show members of the public, both in the foreground and background, who are watching his performance. In some cases, members of the public will join him to play a piece on the piano.
The issue in this instance is that some members of the public, who had been observing in the background, requested that he not show their image on the video and to delete that aspect of the footage. Mr Kavanagh declined to do so on the basis that it was video taken in a ‘public place’.
While the ‘viral’ nature of the interaction, which was recorded, is gaining traction due to where the particular members of the public were from, the issue is whether any member of the public, irrespective of where they are from, can make such a request. The answer very much depends on what the applicable law is, and what may be permitted in the United Kingdom may not necessarily be permitted in other countries.
A social media online world
The underlying framework to bear in mind in 2024 is that:
- global travel is now very common and accessible to many;
- there is unprecedented access to a global audience through social media;
- pocket-sized devices can record high-resolution images and video and ‘post’ or ‘stream’ them online to a global audience at the click of a button; and
- once a photograph or video goes ‘online’ it can be extremely difficult to stop it spreading globally and remaining accessible and viewable into the future.
This framework did not exist as recently as 25 years ago.
As a result, we can all be potential participants, unknowingly or not, in a photograph or video taken by others. Whether we can object to, or even prevent this, depends on the particular circumstances, including where the photograph or video was taken.
Private v public spaces
For private spaces, the position is generally consistent across countries – the owner of the private space can set the conditions on whether or not photographs or video can be taken within that private space. For example, the terms and conditions for events or shows will often state that photographs and video may be taken and the attendee does not object to the use of their image. The intersection of data protection and rights to privacy is increasingly seeing provisions in various countries to allow opt-outs, or where specific areas will be designated as ‘no photograph/video’ zones but, overall, consent to being photographed or videoed is often a condition of entry or participation.
For public spaces, it is legal in many countries to take photographs or video, even if the photograph or video shows members of the public. However, this is not the case for all countries and the position under local law can vary from country to country. It is also important to remember that some spaces, while they may appear public (such as no walls or other barriers to entry) are in fact private spaces.
Some countries, for cultural, security, social or other reasons, will set limitations on who or what can be photographed or videoed. For the UAE, and many countries in the Middle East region, the right to privacy and the reputation of an individual has been enshrined in national laws for many years, and long before the rise of social media. Following some recent updates, three key UAE laws are:
- Federal Decree-Law No. (38) of 2021 on Copyright and Neighbouring Rights prohibits the photography, recording or videoing of an individual without their consent.
- Federal Law by Decree No. (31) of 2021 Promulgating the Crimes and Penalties Law (Penal Code) prohibits both unauthorised photography, recording or videoing without consent but also prohibits images or video that would cause a person to be subject to contempt, public hatred, or have their honour or dignity violated.
- Federal Decree Law No. 34 of 2021 (the Cybercrimes Law) prohibits the taking of images of individuals without their consent and sharing over an ‘electronic network’. A more detailed overview of the Cybercrimes Law can be seen in our article here [https://www.hadefpartners.com/News/579/Cybercrimes-and-the-Digital-World-%E2%80%93-A-UAE-Perspective].
In practical terms, it is illegal in the UAE to take a photograph or video of a person without their consent, even if in a public place.
Conclusion
Similar laws apply in other countries and, as is the case with many laws, what is permitted in Country X may not necessarily be permitted in Country Y. It is therefore very important to understand the applicable law of the particular country you are visiting or living in.
Taking one step back from the legal position, and whether taking photographs or video of people in public places is permitted or not, there is the personal position. Just because you can do something under applicable law does not always mean that you should. Even where such photography or videoing is permitted, there may be many reasons why a person does not want to appear in the photograph or video. These may include personal reasons which they do not want to disclose. It may even be that, while they appeared in the frame of the photograph or the video, they are not in focus or cannot be identified, and showing them the photograph or video can resolve the matter. If they are in focus or were the subject matter of the photograph or video, can they be edited out or is deletion the only option to satisfy their request?
To the extent that a request to delete/edit a particular photograph or video is reasonable or understandable, you may need to consider whether there is any particular reason that you do not want to comply with their request? However, this must be considered within the context of the applicable law and failure to comply could, in certain countries, result in an offence taking place.
This is a high level comment on a complex area of law. If you require further information on photography and videoing laws in the UAE, please reach out to our Trade Marks and Brand Protection team or send an email James Dunne, Head of Trade Marks & Brand Protection at j.dunne@hadefpartners.com.