Social media has become full of potential private detectives. They are users who use social platforms to show behavior that they consider inappropriate or illegal. They start from clues or evidence and reach their own conclusions, sometimes correct and sometimes not. It happened a few weeks ago in the US, when a woman posted several videos on TikTok of a man and a woman on a flight from Houston to New York, in which she claimed that they were having an affair, according to the report. New York Times. In 2019, it also happened in Spain: a man was recorded in a nightclub in Vigo while kissing a woman who was not his partner, and the nightclub published the video on Facebook. That same year, videos of the so-called balcony police who shouted at people walking in the street during the coronavirus lockdown, despite being healthcare workers going to work or disabled people.
Is it legal to record someone without their consent and post it on social media? Borja Adsuara, a lawyer specialising in digital law, explains that it is not: “No one can take a photo or video of you without your consent, even if you are in a public place, and even less so distribute those images afterwards.” This is stated in Organic Law 1/1982 on civil protection of the right to honour, personal and family privacy and one’s own image. It is only possible if the person authorises it. “Someone being unfaithful may be gossip, but it is not protected by the subjective right to information, it is part of their privacy.” A person’s image is biometric data, explains Paloma Llaneza, a lawyer specialising in data protection, and publishing it without consent is also a breach of the Data Protection Regulation. In the case of a famous person in a public space, the situation would be different: yes, it is allowed, according to the law.
It is also not allowed to record an anonymous person if they are committing a crime in a public place. The Instagram account Patrulla Madrid (@patrullamadrid) with almost 300,000 followers, he chases pickpockets in Madrid and Barcelona, films it and posts it on Instagram and TikTok. One of his latest posts has more than 125,000 followers. likes and almost 3,000 comments: “They are heroes without a cape,” says one comment. However, it is not permitted to accuse a person and publish their image. “Our legal system is designed so that no one takes justice into their own hands. First, they point out the pickpockets, then they criticize their behavior, they attack them, and you are two steps away from being a hanging judge,” explains Llaneza. Citizen patrols “start with the whistle and end up beating people,” he warns.
From Patrulla Madrid they indicate that they only publish the faces of pickpockets who have a final sentence or who have been caught “in flagrante”. They cite article 8.2 of the Organic Law 1/1982but experts say that this article is not applicable, as it is aimed at people with public positions, with a profession of notoriety or public projection, and not anonymous. “The legal consequences are minor compared to the benefit that this represents for society,” they declare. The media, on the other hand, can photograph unknown people for informational purposes, according to article 20 of the Spanish Constitution.
If someone records criminal conduct, both Adsuara and Llaneza point out that the video must be handed over to the police, without publishing it on social media. “It is the same as if someone is arrested and their face is not shown. There is a presumption of innocence until they are convicted in court. If you anticipate and say that they are a criminal and in the end they are not, they can claim compensation for damages, slander and libel,” explains Adsuara.
The offended party is responsible for reporting crimes against honour, privacy and one’s own image. In the above case, it is the pickpocket. If you see your image published without your consent, you can ask for civil compensation for damages and also go to the Data Protection Agency. In that case, Llaneza recommends hiring a lawyer: “The agency has a reporting channel With online forms, you don’t need a lawyer. If you want to present it with evidence and get things done, it’s always better to have someone to advise you.” TikTok is also a good way to find a lawyer. However, many pickpockets don’t take action when they see that they are being recorded. “I don’t know of any who have reported the person who posted their photo,” adds Adsuara.
Llaneza calls people who expose the private lives of strangers on social media “digital old ladies”: “Gossip brought to the digital world, the gossip that destroyed people’s lives.” There are users who are in favor of exposing the lives of others on social media. In the case of the video of the couple from New York, some users justified its publication as an act of feminism. Tamika Turner, a content creator from Brooklyn, responded by referring to her addiction to surveillance and attention, and made her intention clear: “Your only loyalty is to your own entertainment.”
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