Would this YouTuber potentially be in legal trouble for filming in a public place?

Question

Brendan Kavanagh, YouTuber pianist, was performing in a "public" place which appears to be a shopping mall in the U.K. and he was being filmed. A few people asked not to be filmed and at least one was from China. (The conversation did not progress to the point of determining who preferred not to be filmed. Helpfully, at least one of them was carrying a China flag but I can't presume that's conclusive.) If the people who asked not to be filmed were to take legal action, would there be consequences for the pianist and his camera man?

Video of an objection to being filmed in a public place in the U.K.

Answer 1

No.

england-and-wales

People are allowed to film in public, whether it is for publication to YouTube or elsewhere, or not. The classic caveat of sophistry to this used by police to “defuse” situations contrary to the spirit of upholding and informing people of their rights, while rather misleading, but technically true, is that if one puts one’s camera right into someone’s face so as to be overly invasive of their personal space, then this can constitute a section 4A Public Order offence of Intentional Harassment, Alarm or Distress. In practice, this doctrine is really never upheld very far, and is mainly used in the realm of giving “words of advice,” where there is little to no judicial or other scrutiny of the police’s legal theories, and they just get to be annoying and difficult.

Another minor point (effectively of pedantry and moot) is that this isn’t seemingly a public place, but a railway station, accordingly subject to the Railway Bylaws. However, the Railway Bylaws do not proscribe filming others in public if it is done in a civil and reasonable way so as to not breach other bylaws such as against disturbing the peace or comfort of other users of the railways.

But in general, police, however politely or earnestly requested or exhorted by a subject, will never ask someone to stop recording someone else, whether in a public place or on the railway, and will on the contrary firmly uphold the filmer’s largely unconditional right to continue filming.

However, this assumes that the filming is done for personal/household purposes.

data-protection gdpr european-union

In case, instead, they are done for commercial purposes or otherwise render the filmer into a data controller under the GDPR, then a much more complex and better developed body of law concerning data subject/protection rights comes into play, which balances the above position with various other rights, responsibilities and interests, with the end result in my opinion that the fact still remains that there is no right to stop someone like this from filming you in a public setting.

I’m not familiar with this “pianist and YouTuber” who took the video, and anticipate that some users here who feel less amused and sympathetic toward him, may try to argue that he is indeed a data controller, and perhaps even further that the result of this on the apparent facts is that they do have a right to deny being filmed.

However, I don’t think this would be a matter for the police but rather a civil matter for the courts to grant enforcement of data rights. And I also don’t think that realistically, this regime also has any fangs. The barrier of effort that would be required to even get an order from a court that the rights exist in principle is so impractical as to be prohibitive, but then even having obtained that, the enforcement aspect particularly where the person is an individual rather than an established company would be nearly impossible (if only because of the likely Streisand effect), with the result being that the rights effectively exist only theoretically, if even they do at all.

Answer 2

The "I don't want to be filmed" has to be honored in the EU*

european-union

For simplicity, I will assume that whoever is doing the photos or recording has the (implicit or explicit) permission of the owner of the place they perform, if the place is owned by someone (e.g. a museum or mall).

In the EU, there is generally a right to publicity - or rather the "right to the own image" and privacy rights. So in general, there is a right to not have your face published, as this essay explains. But that right has limits. As a general baseline over most of the EU (which has after all different countries), if you make someone the center (subject matter) of your work, you need their allowance to publish or use an exception e.g. they are a person of public interest and the displayed photo is not too intimately private. If your work just coincidentally catches someone besi1des the picture's subject matter or a large crowd, then the personality rights are not, or much lesser, implicated.

If a performer is filmed in a public space, then the performer is the subject matter, everyone passing by or watching is just caught incidentally and because they are part of the crowd can generally be photographed.

A different result is, that if you film "people in a shopping center", the people are the subject matter. That in turn results in that any person's request to not publish is the same as never having had permission and you can not publish the video in a fashion that exposes their identity.

That, in turn, means you might have to possibly blur the faces or backgrounds, or use odd camera angles that make people unidentifiable before publishing. If a person is not identifiable, their personality rights are not implicated and the request to not be shown is properly honored. That's why there is an asterisk up there: there are ways to comply with both having a continuous recording and not showing people who don't want to be shown at the same time.

Answer 3

No

Photographing or videoing people in or from a place where you have permission to film. If he didn't have permission, then that is a matter of trespass between the shopping centre and the cameraperson, nothing to do with the people filmed. However, it would generally be accepted that you have permission to film in the public parts of a shopping centre unless you're told you don't. See Do people generally have the right not to be photographed on private property?

Audio recordings have different rules. However, you can secretly or openly record a conversation you are a part of.

The only possible legal issue is if the public release of either the video or the audio breaches privacy or confidence. I can't see anything private or confidential going on here.

This incident has made the mainstream news:

British barrister Daniel ShenSmith, who goes by BlackBeltBarrister on YouTube, said Kavanaugh was completely in the right in the situation.

“If you’re in a public place there is no automatic right to privacy,” he said.

“If you’re walking around a very public open space … or they come up to something which is obviously a public event of some sort where there’s people filming, there’s no automatic right to privacy there, and so there’s no compulsion on anybody to delete the footage, prevent it going online or supply a copy of it and things like that.”