How does media consent work?
By: Megan Landry
Let’s talk about consent.
Are you legally protecting yourself and your work? When it comes to privacy laws and media consent, you don’t have to live in Hollywood to be a target for a lawsuit. Waterbridge Media, an Ottawa-based media company, was sued upwards of $4,000 by a pedestrian in 2017 after she caught a glimpse of herself jogging in a promotional video for a local condo company. She testified that the commercial “blasted her image to the world without her consent or permission” — and legally, she’s not wrong.
In some cases, consent in media isn’t an obligation or maybe even apparent enough to cross your mind, but there’s a lot more at stake than you may think. Today, photography and videography have never been so accessible or affordable. Introduced nearly two decades ago, the digital single-lens reflex camera completely revolutionized not only the media industry itself but also for the average consumer.
When it comes to the rules and regulations, a quick Google search could render you with more confusion than insight. Laws are constantly evolving and vary from province to province in Canada. There isn’t a one-size-fits-all explanation because every media shoot and subject are different. The best way to legally protect yourself is to get familiar with privacy laws.
Who are the laws protecting, and why?
Privacy Laws have a dual purpose. They are put in place to protect the likeness of the general public, as well as protect photographers and videographers work.
There are two primary federal privacy laws; the Privacy Act, for federal government, and the PIPEDA (The Personal Information Protection and Electronic Documents Act), for businesses and private sectors. In addition, most provinces enforce their own variations of personal information privacy laws. According to these laws, an image or video of a person is considered personal information just as much as a phone number or credit card number.
Contracts are a great idea!
In media production, a Model/Consent Release is a legally-bound contractual agreement between the shooter(s) and the subject(s). Even if the subject’s face isn’t visible, something recognizable like a unique blemish or tattoo should require that person’s consent. Although it isn’t always necessary, it’s in everyone’s best interest to have a model/consent release form signed as a safety net. Note too that in a case where the model is under 18, a parent or legal guardian is responsible for signing the release.
There are exceptions like public figures and celebrities, but even then, every situation varies! Anyone captured in the background of a shot could be a liability if they didn’t agree that their likeness could be used commercially. They may never know or even care that they’ve been unintentionally featured in your project without consent, or they may care a lot and invite you to court. To avoid the latter, it’s always best to ensure approval from all parties on-screen.
What should media companies do to make sure they are doing all they can to comply with the privacy laws?
From the rough idea to the final product, it’s the responsibility of all media companies to;
- Develop and implement privacy policies
- Enforce clear guidelines
- Ensure awareness
- Accumulate model consent
- Consider model accommodations
- Identify the project and their role in it
- Identify the intent
- Identify the distribution
- Avoid accumulating unintended content
- Maintain and monitor accuracy
- Protect and store content
- Protect the transferring of content
- Keep a record of all dates and details for all of the above
If a shot is modified or re-used at a later date for any purpose besides what was stated in the initial contract, you are obligated to request their consent again. Even deceased people require a release in most provinces. In some cases, you may even be asked to destroy content after its intended purpose has ended, especially if the subject matter is sensitive. As a rule-of-thumb, the goal is to always be abundantly clear what the project is for and how it’ll be stored, protected, shared and distributed. It should never be assumed that you can re-use content just because the initial project has come and gone — unless permission has been granted in perpetuity.
Location matters!
Procedures differ between public and private spaces. In general, a Property Release may be required if there are any recognizable assets, buildings or landmarks visible on set. This release is usually signed by the owner of the property, granting permission to publish and promote the atmosphere captured at said location. Beyond the location itself, this includes any on-site assets that belong to the property.
For example, zoo animals cannot usually be photographed or filmed for Commercial Use because they are considered the property of the zoo. In a profitable situation, the zoo property owner(s) would have to grant the animal‘s consent. Many publicly funded organizations, such as schools and hospitals, are responsible for protecting public privacy upon their premise and usually have their own set of releases at the ready.
A Crowd Release is typical for large-scale events such as televised sports games or concerts. A notice should be advertised online, displayed at the venue or issued on tickets to constitute the agreement of attendees to appear on camera. By attending an event like this, or even simply attending a busy public space, you surrender your expectation of privacy for the most part.
Why are there exceptions?
It’s all about intent. Why is the photo or video being captured, and what is its intended use? The crucial difference between Editorial Use and Commercial Use is financial intent.
The term Commercial Use typically umbrellas anything created with the intent to promote or generate a profit. This includes any given degree of marketing on any platform, even without a link or call-to-action. Promoting a product or service, no matter how formal, is technically considered Commercial Use. Most importantly, a consent release form is mandatory for anyone appearing in a commercial product. This also applies to trademark and copyright, such as a distinct product or a logo on someone’s shirt, which you’ll typically see blurred-out in TV and film.
Editorial Use refers to any not-for-profit non-commercial content such as journalism, newsworthy events, magazines, blogs, educational and personal work, etc. Technically, anybody can practice journalism, but that doesn’t mean every shot you take is considered as journalism.
All in all, there’s a lot of grey area in this rapidly growing industry, and experience is the best teacher of them all. When in doubt, take a step back and go with your gut. If you think it might get you into trouble, you’re probably right. Question your process and answer yourself honestly. Am I doing the right thing? Am I being respectful? Who will be affected, and how will that affect me? Consider the consequences before you don’t have a choice to because once you put your work out into the world, it’s out of your control.
