The murky ethics of Facebook Live and filming people without their consent

Just because you can film someone spontaneously doesn’t mean you should.
Just because you can film someone spontaneously doesn’t mean you should.
Image: AP Photo/Joerg Koch
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In the age of the smartphone, we’re all documentarians now. When we see something unusual—whether it’s police brutality or a pedestrian walking a turtle on a leash—our instinct is often to grab our phones and start recording.

This urge has merit—imagine if George Holliday hadn’t grabbed his camcorder and filmed the beating of Rodney King. But as live video platforms increase in number and popularity, questions arise about the ethics of filming those around us: If someone doesn’t want to be on camera, do we have an ethical responsibility to respect their wishes?

Livestreaming became widely available as a consumer service just a few years ago. During the so-called Arab Spring, shaky recordings streamed through Swedish platform Bambuser showed us the reality on the ground in Cairo and Homs. The tool quickly gained momentum amongst Spanish anti-austerity protesters, Russian opposition, and the Occupy Wall Street movement, which used it to broadcast police activity.

In the years since, most of Silicon Valley’s big-name companies have attempted to enter the livestreaming market. From Periscope to Meerkat, YouTube Live to Google Hangouts, the choices are endless. But most of the stories making the headlines today involve one popular platform: Facebook Live.

What makes Facebook Live different from its many competitors is the built-in audience it provides. Whereas YouTube might be the best platform to broadcast a live concert and Twitch the place where gamers stream their play, Facebook has situated itself as the best way to connect with a friendly audience.

Film first, think later

Facebook’s latest ad campaign, plastered across billboards and bus stops in major cities including San Francisco, London, and Washington, DC, encourages users of its Live platform to film the scenes around them. “Have somebody take out a phone,” one advertisement urges, “Don’t worry about what you’re going to do. Someone will think of something.”

“How to go Live when you see someone walking an animal that’s not a dog,” another instructs: “Say hello … when the moment’s right, take out your phone. Open Live.”

But none of the advertisements recommend getting a video subject’s permission first. The company’s silence on this topic implicitly suggests that, if you’re holding the camera, you don’t owe anything to the people you’re filming.

Generally speaking, the US gives people a right to film in public spaces for non-commercial purposes so long as one’s depiction of individuals isn’t offensive, defamatory, or unreasonably privacy-violating. In practice, this often means that photographers capture unassuming individuals without asking permission—and as long as the depiction isn’t unduly harmful, that’s legally okay. But even if we have the right to capture individuals in our photos and videos, that doesn’t necessarily mean we should.

When it comes to capturing unaware subjects, photojournalists often live by the mantra of asking forgiveness, rather than permission. Without such freedom, we might not have powerful images like Nick Ut’s “Terror of War.” We also wouldn’t have the split-second capture of the death of Eric Garner, killed by New York police. If filming guarantees a record of events, then livestreaming takes it one step further, ensuring an audience and diminishing the risk of content loss.

But it’s worth considering the impact of publicity on subjects and bystanders, as well as the people behind the camera. Ramsey Orta, who filmed the death of Eric Garner at the hands of police, claims that the NYPD has since targeted him for revenge. 

Indeed, even when the purpose of filming is entirely noble—capturing police brutality or other acts of malice, for example—one must consider the implications for those caught on camera. Dia Kayyali is the senior program coordinator at Witness, an international organization that trains and supports people using video in their fight for human rights. “In a human rights context, capturing human rights violations of one sort or another is important,” says Kayyali. “But it has to be done ethically.”

For example, the push to capture instances of police brutality is just, but the potential harm must be balanced with the potential value. An individual victim caught on camera runs the risk of retaliation or re-victimization, risks that can trickle down to their families. If the individual is vulnerable for other reasons (perhaps they are queer, or disabled), such a violation of their privacy could mean additional harassment or attacks. Even when there’s a clear public interest in sharing such content, checking in with the subject of a video—when possible—is a good idea.

Designing consent

Facebook is in a unique position to use its prominence, and its advertisements, to promote consent. Rather than encouraging users to simply whip out their phones and click “Live,” the company could easily remind users to ask permission. In doing so, they could set a new cultural standard—or at the least reinforce common courtesy and basic human decency.

The company should also build in tools that allow users to work around it. Witness—the organization where Kayyali works—created an app called Obscuracam with privacy tool developer Guardian Project that allows users to blur the faces of subjects in their photographs. The app is simple to use and was developed on a nonprofit budget, making it even more surprising that neither Facebook nor its subsidiary Instagram have bothered to include such a tool.

Given Facebook’s strategy to become a “video first” company, it seems likely that these issues will gain even more urgency in coming years. Facebook’s chief product officer Chris Cox has predicted that video will account for 70% of all mobile traffic by 2021—a prediction that’s easy to make when you’re paying celebrities to promote your platform.

Furthermore, the news that Facebook is pulling back from deals with publishers to use Live—coupled with the ads targeting ordinary users—indicates that the company is increasingly relying on its users to create money-making content. The company has moved our cultural goalposts from a reasonable expectation of privacy to a reasonable expectation of virality, with no consideration toward the ethics of capture.

We’ve finally reached a point where consent is a hot topic—and that conversation must progress to cover other aspects of life. It’s important that our right to public photography remain intact, but we can seek to preserve that right while also ensuring personal privacy and safety. Facebook should take the lead in setting that example for its users, by bringing consent into the conversation.