IP, Technology & Data

You have probably seen the “Don’t Mess With The Big Man” YouTube video. It shows a passenger on a train from Edinburgh to Perth arguing with a ticket inspector and seemingly refusing to pay his fare, before being then carried off the train by a fellow passenger. The parties have been dubbed “the Ned” and “the Big Man” respectively, by the person who posted the video on YouTube.  (In the interests of not repeating any potential slander I won’t use the term “the Ned”!)

The video has provoked a lot of debate and the latest development is that the Big Man has been identified, and charged with assault. I’m no criminal lawyer and I’ll leave the discussion about whether or not the Big Man’s actions constituted assault to the experts.

I’m more interested in considering what remedies both parties may seek. Both probably wish the video had never existed, and are maybe wondering if they have any recompense against the person who posted the video and/or YouTube itself. 

Has the poster of the video on YouTube broken any law?
Murray v Big Pictures (the case involving tabloid photographs of JK Rowling’s son in his pram) makes it pretty clear that, in certain circumstances, the taking of photographs of somebody in a public place can infringe their rights to privacy. It’s not impossible to imagine this precedent being extended to making a video clip of somebody in a public place.

Further, the processing of the parties’ data on YouTube is arguably contrary to the Data Protection Act, because the processing has been carried out without their consent. 

In reality the Information Commissioner is unlikely to respond to any data protection complaint by pursuing the poster for this type of content.

However breach of privacy rights could feasibly entitle both parties to claim damages. 

Has YouTube itself broken any law?
In the event of any claim or claims, YouTube would probably argue that it was a “mere conduit” under the E-Commerce Directive. (This “mere conduit” defence provides that a web host isn’t liable for content on the basis that the host has no actual knowledge of illegal activity or information (provided that they act expeditiously to remove content if something or someone does alert them to illegality).) YouTube would probably also say that they might well have removed the video if either of the parties had asked.

The catch is that the “mere conduit” defence doesn’t technically extend to privacy/data protection complaints. This is at least partly why Italy is pursuing prison sentences for 3 executives of Google in relation to footage posted on Google Video in 2006. (According to the San Francisco chronicle, an appeal will be heard early in 2012.)

As far as any financial liability is concerned, YouTube’s Terms of Service are drafted to protect the company from liability arising from user-generated content. The Terms state that the user agrees to comply with all applicable laws. As discussed above, the user has possibly broken some laws.

The Terms also state that users are solely responsible for content and the consequences of submitting and publishing content, and that users indemnify YouTube against any and all “claims, damages, obligations, losses, liabilities, costs or debt, and expenses” arising from violation of the Terms.

What is likely to happen?
It’s impossible to predict how things will develop.

I imagine it’s pretty likely that charges may be quietly dropped, with both parties being encouraged to resume their normal (and private) lives.  

But it’s not impossible that this incident may come to have serious repercussions for “vigilantes”, “citizen journalists” and web hosts of user-generated content.

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