In digital era where content is king and people are striving to become “influencers,” businesses must be vigilant. A recent situation involving one of our members highlights why you should consider comprehensive legal and practical strategies to protect your interests against unauthorised filming.
The scenario facing our member was simple:
A videographer has social media channel that monetises content by stirring up controversy at dealerships for clickbait. This videographer films on dealership property without permission, using both a handheld camera and a drone. He antagonises staff, often by what seem like modest steps if looked at only individually, seeking to provoke a negative reaction. He then posts these videos with some sort of inflammatory tagline like, “worst manager EVER!”
This individual not only disregards the privacy, dignity, and well-being of staff and customers, filming them without their consent, but his actions disrupt normal business operations.
While this is only one specific situation—albeit one that all members should be aware of and prepared to address—it raises more general concerns about your rights and obligations if someone takes out a camera or a phone and begins to film without authorisation on your business property.
Trespass
Though social media has only been around for a couple of decades, the starting point for thinking about how to address unauthorised filming comes from law that has been around for centuries.
Trespass amounts to the unlawful intrusion or invasion onto property owned or lawfully occupied by another without permission or right. Let’s take a step back and think about how this definition applies to someone filming on your property without permission.
As a general matter, a person may film in public places. There are a handful of interesting exceptions to this—like Trafalgar Square—but mostly the general rule is strong and expansive.
Fortunately, business properties are not public but private. Still, the owner of private property generally cannot prevent a person from filming the property from a public place or from other adjacent private property. Moreover, no automatic prohibition prevents a person from filming on private property.
That second point, however, provides the key. While no general prohibition exists, the owner of private property has the right to impose whatever conditions they want on entry to the property, including restricting the right to film or take photographs while on the property.
That gets us back to the definition of trespass. If a visitor has permission to be on private property only if they agree not to film without authorisation, then they become a trespasser the moment they start to film (assuming they don’t have authorisation). They are now intruding or invading the property. The owner has the right to demand that the trespasser cease filming or taking photographs. If the trespasser refuses, the owner has the right to demand that they leave the premises.
Usually, trespass constitutes only a civil—and not a criminal—matter, but a property owner can seek damages even if no physical harm to the property has been caused. Without physical harm, damages will only be nominal. But, more important than damages in this situation, a business may get an injunction to prevent the trespasser from intruding in the future, and it may also be possible to prevent an unauthorised videographer from using illegally obtained footage for any commercial purpose.
In short, trespass can be a bedrock legal tool in this situation.
Here are a couple of practical things to keep in mind and do to help strengthen your position should you need to use this tool:
· Warning: Don’t take matters into your own hands. While owners of property have limited rights of self-help against trespassers—a property owner can use “reasonable” force to prevent a trespasser from entering property or to remove a trespasser from property—in this context, “reasonableness” almost certainly means simply asking the videographer to stop filming and leave. If the videographer refuses, call the police.
· Warning: Don’t confiscate or damage the videographer’s camera or other equipment and don’t demand deletion of any footage. Instead, simply ask the videographer to stop filming and leave. If the videographer then posts the video or photographs, contact us to help you assess next steps.
· Consider posting signs in prominent places that clearly prohibit unauthorised filming or use of cameras. (Some airlines are now making announcements as part of their regular pre-flight process prohibiting the filming of any staff, other customers, or airline equipment.) You might include a statement saying something like this: “if you want to film yourself with your new car or take other pictures, we can appreciate that! Just ask a member of staff for authorisation first.”
· Develop a clear and consistently applied policy that your staff understand and enforce. If someone is filming or taking pictures without authorisation, ask them to stop, and if they do not, ask them to leave. The more consistently the policy is enforced, the better.
Beyond trespass, there are other claims and issues to consider.
Defamation
In extreme situations, defamation may be relevant. Defamation involves the act of damaging the reputation of a person or entity through the publication of false statements.
While defamation can be a powerful means of dissuading bad behaviour, the reality is that defamation claims in this context are likely to be quite challenging. First, and perhaps most fundamentally, defamation only exists if you can prove some sort of harm. In this situation, demonstrating, concretely, how your business interests have been negatively impacted may be difficult or impossible. Second, defamation claims are typically brought in the High Court, which means that they are complicated and expensive to pursue.
Still, if you believe that someone has posted false or seriously misleading videos (or other social media content) that may be damaging your business, we can help you assess whether a defamation claim might be the right mechanism for you to get relief.
Invasion of Privacy and GDPR (General Data Protection Regulation)
The law surrounding invasion of privacy and GDPR (or, more technically, the Data Protection Act 2018, which is the UK’s implementation of GDPR) is detailed. For purposes of this short article, we’ll simply say that these legal concerns create both an obligation on you, as a business, and some limited practical leverage against an unauthorised videographer.
Let’s start by considering your obligations.
Businesses owe a duty of care towards their customers, which includes taking reasonable steps to ensure their safety and privacy while on the business premises. The precise contours of this duty are nuanced, but if you or your staff become aware that someone is filming your customers on your property without authorisation or consent, you have an obligation to take reasonable steps to protect your customers’ privacy. A failure to do so could expose you to liability.
The good news, however, is that if you follow the steps discussed in the prior section regarding trespass—you post signs and have a clear and consistently applied policy of not allowing for filming without authorisation—you have gone a very long way towards taking reasonable steps to protect your customers’ privacy.
Now let’s think about the videographer’s obligations and how those might be used by you to protect your interests.
The videographer cannot infringe on an individuals’ right to privacy. This context raises fact-specific issues, but the idea is simple enough: people have a reasonable right to privacy and others cannot infringe upon that right. Defining the reasonableness of the right to the privacy on a business property open to the public can be challenging, but there are clear examples of problematic filming.
For instance, imagine that an unauthorised videographer is filming an interaction with a service manager. Behind the service manager, a customer is talking with a different representative who has the customer’s data pulled up on a screen that is clearly legible in the video. The screen shows the customer’s name, address, phone number, and email information. This sort of video would seem an obvious invasion of the customer’s privacy.
The customer in this situation would have a right of legal action against the videographer. But direct legal action against the videographer is not the only option. Practically speaking, understanding the videographer’s obligations can be useful in developing a strategy to prevent further unauthorised filming. If incidents where your customers’ privacy has been invaded have occurred, they can help underscore the need for injunctive relief to protect the business and its customers.
If the videographer is making money off their content, GDPR also applies to them. GDPR applies to any entity, including individuals, that process personal data in the context of professional or commercial activities.
This is important because, in a situation like that facing our member, where the videographer was posting videos to a monetised social media account, he must show that he has a lawful basis for processing that data and that he has consent. Here, he was collecting data—filming people and property—without a clear lawful basis for doing so and without any consent. He was likely violating GDPR.
While GDPR only protects individuals, violations of GDPR can be leveraged with the social media host to have videos or photographs removed and thus, again, offer an important practical tool in addressing unauthorised filming. Moreover, GDPR violations can be reported to the Information Commissioner’s Office (ICO), which can then take action against the videographer.
Harassment
The Protection from Harassment Act 1997 states that a person must not pursue a course of conduct that amounts to harassment of another and that they know or ought to know amounts to harassment of the other. Filming someone without their consent can amount to harassment.
Importantly, harassment is generally seen as an individual claim, meaning that a business probably cannot assert it directly. (Some older case law exists suggesting that, in a truly extreme circumstance, a business might be able to claim harassment, but modern precedents are spare.) That said, staff members of the business may be harassed.
Courts have said that harassment amounts to a persistent and deliberate course of unacceptable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear, or distress. With respect to the “persistence and deliberateness” of the conduct, while no precise numerical threshold exists, courts generally require at least two incidents against the same person. With respect to the unacceptability and oppressiveness of the conduct, it must cross the boundary between unattractive, or even unreasonable, and become severe and outrageous.
All of this means that, practically speaking, most instances of unauthorised filming are unlikely to rise to the level of harassment. That said, in the case of a videographer monetising content on social media, things can get out of hand quickly. The comments to several of the social media posts of the specific videographer who inspired this article urged him to become more aggressive with his interactions.
You should understand that your staff members have the right to take legal action, should they be harassed. We are ready to help you and your staff assess specific situations and determine if a harassment claim is the best path to address unauthorised filming.
Conclusion
The rise of digital content creation has brought new challenges for businesses in protecting their property, brand, and the privacy of their employees and customers. By taking proactive steps and being prepared to enforce your rights legally, you can safeguard your dealership against these challenges.
Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate. We arere here to guide and assist you in navigating these complex issues, ensuring your business continues to thrive in a respectful and legally compliant manner.
Motor Industry Legal Services
Motor Industry Legal Services provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.
