With the recent arrival of the European Data Protection Law in Spain and the rest of the countries belonging to the European Union, there are many who prefer to stay on the sidelines when making use of private data. Our own image is a private data, and as personal information that it is, the current law contemplates a series of considerations that have to do with the capture of photographs and images in public spaces (a street, a park, the terrace of a bar…) with a mobile phone or recording equipment.
The doubt in relation to this last practice is sown. Is it legal to capture images and videos on public roads? Is it necessary to hide the face of all the people who have not signed an express consent?
Recording or taking photographs on public roads is legal depending on its purpose
The legality of capturing images of people in public spaces depends entirely on the purpose for which the material is to be collected. To test a button.
Let's imagine that Juan, a freelance journalist who collects news to sell later to information agencies, records a series of shots of the Plaza Mayor in Madrid to accompany a news item of general interest, which will later be televised on various national newscasts . In the image dozens of people appear walking down the street with their faces uncovered. Is it legal, or is the express consent of the people in the images required?
This is what the law says:
“Consent will not be necessary when personal data is collected for the exercise of the functions of the Public Administrations; when they refer to the parties to a contract of a business, labor or administrative relationship and are necessary for its maintenance or fulfillment; when the purpose of the data processing is to protect a vital interest of the interested party ... "
Article 6.2 of the Data Protection Law (LOPD 15/99).
We can affirm, therefore, that the images are perfectly legal as long as they have the purpose of informing and belong to a newsworthy event and of informative interest. There are a number of exceptions, however, that limit this right. Three, to be more exact.
- If the image capture is done for commercial or advertising purposes.
- If the filming is done with the purpose of reproducing the intimate life of a person.
- If the recording seeks to reveal personal details.
Let's move on to the second case. Let's imagine that Pepe, a well-known youtuber by profession, with more than 5 million subscribers on YouTube, records a series of images on Madrid's Gran Vía to give context to his latest video, which will be exploited for a particular purpose . Pedestrians appear on the maps circulating along the sidewalks of the road. Is it legal, or is a signed consent required?
In this case, Pepe needs the express consent of all the people who participate in the video directly or indirectly. Even if the purpose of the recording is not to exploit the filming for economic purposes, but is limited to being exposed on social networks or stored in the memory of the recording device.
Beware of recording minors
If we talk about minors, the law includes a set of exceptions that protect their integrity and image when obtaining images on public roads.
Whatever the purpose of the recording, the law dictates the following:
“The data of those over fourteen years of age may be processed with their consent, except in those cases in which the Law requires the assistance of the holders of parental authority or guardianship for its provision. In the case of minors under fourteen years of age, the consent of the parents or guardians will be required ”.
Article 13.1 of the Data Protection Law.
The conclusion, therefore, is that express consent must be requested from the minor's parents as long as they are under 14 years of age . If the minor's age is between 14 and 18 years old, the consent will come from the minor himself. The alternative to which we can resort, in any case, is to hide the faces of the minors through a mark that prevents their identification.
I am witnessing a crime, can I record the person without their consent?
A controversial issue, while complex, has to do precisely with the capture in images of crimes that are witnessed by third parties .
The latest jurisprudence (Supreme Court Sentence 3585/2016) indicates that the contribution in a trial of recordings of scenes of a particular nature made by one of the participants does not violate the right to known as secrecy of communications . In no case will the recording of an activity or situation of others in which it is not intervened without judicial authorization will be admitted as evidence.
Let's imagine that Maria videotapes her boss for alleged sexual harassment at work. Both are participants in the conversation, and the images demonstrate the clear consummation of a crime by their boss. In this case, the capture of images is totally legitimate and legal , even without prior notice from the person in charge.
Another situation that is far from Maria's. Let's imagine that Antonio is walking down the street and witnesses the fight of a heterosexual couple. Antonio tries to mediate, but the boy attacks his girlfriend and Antonio. Is the test valid? Yes . The doubt that the last sentence of the Supreme Court leaves us lies precisely in the legality of the images when the person in charge does not intervene in them actively.
Can Antonio record the scene if he does not intervene in the dispute? The experts are clear: the best we can do in these situations is to notify the Police or the Civil Guard , since the images would not be admitted as evidence and we would probably be committing a crime against the current Data Protection Law.