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In this day and age of gadget extremus, where almost any
device can be a camera/video camera, it is not surprising that people are being
recorded on a daily basis by the government as well as by random individuals. Yet, when
is it okay to record someone?
A friend of mine was relating a situation to me that
occurred at her job. She works at a fast food restaurant and was requested to
serve a customer a waffle ice-cream cone. As she handed the woman the ice-cream
cone the customer complained that she had not handled the waffle cone in a sanitary manner. Considering that my friend which I will refer to as
Brenda, was a cashier, the customer
complained that since she was handling money she should be careful not to touch
the part of the waffle that the customers were eating instead she should hold
the waffle where the strip of paper was located on the cone. Brenda explained
that she did do that but the customer insisted that she did not. Instead of
arguing with the customer, she proceeded to get another cone from a fresh
unopened sleeve of waffles that she had to retrieve from the back of the store.
When she came back, she noticed the customer was angling the phone in her
direction. She ignored the action and continued serving up a fresh ice-cream
cone. By the time she gave the ice-cream waffle cone to the customer, the lady
explained that she was about to record her to see if she was going to follow
correct procedures. This angered Brenda immensely, as the only thing she could
think of was a questionable video of herself circulating on the internet
without her permission. This prompted
her to ask the customer why she would record her even though she was attempting
to fix the problem. Even though the customer had apologized about wanting to
record her, Brenda felt as if her rights were violated and also felt she could
have been further violated had the video surfaced on the internet. It had
rattled her.
Even though that customer felt as if she was doing the
correct thing, was she in fact out of bounds by trying to videotape an employee
for any reason without the permission of said employee? I believe that no one
wants to be secretly recorded or even if the person is visibly recording, to do
so without consent of the person that is being recorded. In fact, a person may
be crossing legal lines when they choose to record someone without the consent
of the person being recorded or are they?
We have seen the myriad of videos that circulate on the
internet through social websites like Facebook. They also pop up in abundance
on World Star hip-hop, Youtube and various news media like Huffington post. We
have seen them at the click of a button. They are videos of fights, videos
sharing moments of hilarity and cuteness, pranks, moments of exceptional
behavior as well as moments of outrageous and unscrupulous behavior. However,
have we ever stopped to think that maybe one or two of the persons featured in
these videos may not have given consent and did not want their faces to be
circulating on the internet?
In a more recent and extreme case, with the story
surrounding the #Jadapose where the young lady Jada, was allegedly drugged and
raped, then her half naked body was photographed while a video was taken and
then released on the internet for the entire world to see her demise. Sadly,
she wasn't even in a conscious state to grant or deny permission to have her
naked body photographed or recorded.
The fact is, individuals constitutionally have a right to
freedom of expression when it comes to videotaping and placing the footage on
the internet. This clearly does not mean that people will not abuse this right
or act responsibly when taking advantage of this right. On the other hand, do
the ordinary people who are going about their daily lives and work have any
protection from these freelancing self-proclaimed videographers? Does Brenda or
Jada have any protection or legal recourse against what may seem to be an act
of violation.
Legally, once an individual is in public or on public
property there is a reasonable expectation for observation to take place and
therefore anyone can legally videotape an individual as long as said person is
within the public perimeters. If that individual is within a place where there
is no reasonable expectation for observation like a bathroom inside a
restaurant, their home or even a changing room in a clothing store then it
becomes illegal to videotape that individual. This means that unfortunately for
Brenda, the customer was within her right and reason to videotape Brenda's
activity because my friend was on public property. In addition to this, the
customer felt as if her food was being mishandled by an organization that gives
consumers the assurance that they will receive quality food 100% of the time
and therefore felt that she was doing a just act by exposing a potential hazard
to the public.
On the other hand, in the case of Jada, there were many
legal violations, but for the sake of this blog, we are just focusing on the
photograph(s) and recording(s). The fact is, it was quite illegal to record
Jada even though she was on the property of one of the perpetrators, the law
states that it does not prohibit security monitoring in a residence if
conducted by or at the direction of the owner or principal occupant of that
residence unless conducted for a lewd or lascivious purpose. While this was
specifically taken from the Michigan penal code, this law is similar for all
states. We can clearly see that the recording/photographs of Jada was indeed
for lewd and lascivious purposes.
I empathized with both these ladies because no one wants to
be recorded then have their face plastered all over the internet against their
will especially in a compromising position. There is such a thin line between
freedom of expression and the right to privacy when it comes to recording
someone and in a matter of seconds that line can be crossed by an individual
with a camera or recording device.
The onus is mostly on ourselves to ensure that we are not
being videotaped without our consent although sometimes it is near to
impossible to prevent that. Thankfully, there are a few cardinal rules to
follow in order to diminish the possibility of individuals being recorded
without their consent. They are:
Be very aware of your surroundings.
Avoid placing yourself in compromising positions that will
render you unconscious or defenseless in possibly precarious circumstances.
And speak up! Simply because an individual is legally able
to record you in public places does not mean that you have to roll over and
play dead. Let the recorder know that you wish not to be recorded or
photographed and if they continue to videotape you, insist on getting that
individuals information and their purpose for videotaping you.
In the case of the recorder, make sure that you never record
someone without their consent or make sure that even after the recording you
are able to procure some type of mutual agreement on the recorded material. In
some cases, you are protected legally and constitutionally to partake in such
activities at will, but that does not mean it is okay to do so against the will
of others.
Also, a person that is recording an individual without the
consent of the person being recorded can attract legal problems and in some
cases may cause themselves to get hurt if the person being recorded lashes out
by attacking the recorder.
The world can be a hostile place but being smart and careful
can ensure that we never or seldom end up on the wrong side of the situation.
In this case, for both the recorder and the person that is being recorded.
