Audience member watches the Meta Connect Developer Conference keynote while wearing Ray-Ban Meta 2nd generation smart glasses at Meta’s headquarters. (Photo by JOSH EDELSON / AFP) (Photo by JOSH EDELSON/AFP via Getty Images)
AFP via Getty Images
Every day, ordinary people become content without knowing it. Someone films a stranger on the subway and posts it. A man records a woman on her lunch break and uploads it to TikTok.
The devices vary—cell phones, smart glasses and dashcams—but the result is the same: real people, filmed without consent and distributed to millions.
For most people who find themselves in someone else’s content, the law offers less protection than they probably expect. So the most immediate solution may not come from a courtroom. It comes from an outraged comment section.
What The Law Actually Covers
The legal framework governing this space is based on a civil liberty that predates social media: the right to privacy. But U.S. courts and legislatures generally afford less protection to content captured in public.
For example, the California Invasion of Privacy Act (CIPA) makes it a crime to record a confidential communication without consent. But it excludes communications where parties might reasonably expect to be overheard. A person walking down the street or shopping at a grocery store generally has no reasonable expectation of privacy.
Other jurisdictions, like New York and Florida, have similar privacy statutes that carry similar limitations.
The California Legislature is considering an amendment to CIPA that would prohibit the use of wearable recording devices, like smart glasses, inside a place of business. Even if it passes, it wouldn’t cover other public spaces like parks and parking lots.
A person could bring civil claims against another who posts a secretly recorded video without consent. But it is a long, uphill battle depending on the facts.
Defamation requires the publication of a false statement that causes reputational harm or special damage. A person probably wouldn’t prevail on this type of claim unless the poster edited the video to misrepresent what actually happened. Even then, the analysis is fact-specific and the remedy is slow.
The right of publicity requires that the poster used someone’s name, image or likeness for commercial advantage without consent. A content creator with a sponsored channel posting videos of strangers may have more legal exposure here. But again, the analysis is fact-specific and the remedy is slow.
Posting a victim’s personal contact information—like what happened to Dilara—may also implicate harassment or anti-doxxing statutes in some jurisdictions. But those claims, too, are fact-specific.
Where Pressure Actually Comes From
The fastest-moving lever for change is platform policy. But platforms like Instagram and TikTok don’t always remove content on their own. Sometimes it takes public pressure.
Amid backlash, Instagram head Adam Mosseri publicly committed to removing videos that use smart glasses to harass or covertly film people. And TikTok initially found no violation of its policy when Dilara reported her video, but later removed it once BBC News intervened.
The law moves slowly. Legislation is narrow. But platforms respond to sustained outrage in ways that courts and legislatures often don’t. For now, the most effective tool available may not be the law. It’s an outraged comment section.