In today’s world, where everyone has a smartphone with a camera, public photography and video recording have become common practice, both in everyday life and in journalism or blogging. However, it is often not only events that end up in front of the lens, but also specific individuals who have the right to privacy and personal data protection. This creates a legal conflict between two fundamental values: the right to freedom of expression and the right to protection of personal information.
Where is the line between public interest and personal privacy? How can we regulate public photography so as not to violate either freedom of speech or human rights? In this article, we will try to understand the legal balance between these two principles.
How to regulate public photography and video recording?
In March 2025, the Cabinet of Ministers approved a plan of measures to implement the European Commission’s recommendations necessary for Ukraine’s European integration. It includes the need to bring Ukrainian legislation on personal data into line with the General Data Protection Regulation (GDPR). Such a draft law No. 8153 is being prepared for a second reading. However, it raises a number of concerns, particularly regarding the rules for audio, photo, and video recordings made openly on the street and during public events.
According to European standards, the right to freedom of expression and the right to privacy are fundamental human rights in a democratic society. They often compete with each other. However, neither of them is absolute. There is also no hierarchical relationship between them. Therefore, they must be reconciled with each other. Similar conclusions can also be found in numerous decisions of the European Court of Human Rights.
This feature is also pointed out by the GDPR, according to which the processing of personal data must be aimed at serving humanity. The right to the protection of personal data is not an absolute right; it must be considered in light of its function in society and balanced with other fundamental rights in accordance with the principle of proportionality. In addition, the GDPR obliges states to reconcile the right to the protection of personal data with the right to freedom of expression and information, including the processing of data for journalistic purposes and for the purposes of academic, artistic, or literary self-expression. To this end, appropriate exceptions or derogations from a number of sections of the Regulation must be established.
Potential conflict
The issue of processing personal data collected during audio, video, and/or photo recording of public events, as well as open filming on the street, is defined in Article 11 of Draft Law No. 8153:
“In the event of audio recording, video recording, film recording, photography, or any other recording of the image or voice of a data subject, regardless of the technology used, in public places or at public events (public meetings, conferences, etc.), the controller is obliged to take sufficient measures in advance to inform the subjects of personal data about the audio recording, video recording, film recording, photography, or any other recording of the image or voice of the subject of personal data, as well as the purpose of this recording, in a manner that allows the subject of personal data to object to the processing of their personal data.”
Thus, the legislator proposes to impose the following obligations on all controllers without exception:
- to notify in advance about the conduct of audio, photo, and video recording;
- to ensure the possibility to object to this.
However, the adoption of the article in its current form may create a number of practical problems. In particular, there will be a conflict with part 1 of Article 307 of the Civil Code of Ukraine. The latter contains a presumption of consent of the person to be filmed.
This conflict needs to be resolved at the legislative stage, otherwise the provisions of the Code will take precedence after the Law of Ukraine “On Lawmaking” comes into force, namely one year after the termination or cancellation of martial law in Ukraine.
However, the biggest problem is that Article 11 of this draft law does not distinguish between situations where filming is carried out for journalistic purposes and those where it is carried out for other purposes (maintaining public relations, achieving commercial or advertising goals, etc.). The social significance of gathering information is also not taken into account.
It is obvious that filming at rallies, demonstrations, protests, and party conventions is, in the vast majority of cases, aimed at satisfying the public interest. However, recording a concert or a school or university graduation ceremony does not have such public significance, and therefore private interests may prevail when filming these events. Legal regulation should take this into account.
In addition, the identity of the person recording the event and the nature of the public event are also important. If it is a journalist, cameraman, or other media representative, the journalistic purpose is obvious. The media, journalists, and cameramen not only have the right but also the duty to cover all socially important events in the press, on television, radio, or the Internet. Therefore, these persons should not face excessive obstacles in performing their professional duties and fulfilling their social role.
Realistic implementation of warning requirements
For example, when recording a concert, conference, or graduation ceremony, advance warnings can be provided on posters, tickets, or invitations, allowing individuals to object to being filmed. Depending on whether a person agrees or disagrees, the venue where the event is taking place can be divided into zones so that those who have expressed their disagreement are not captured on camera.
However, when it comes to rallies, protests, or other similar events that are of great public interest, the situation becomes radically different. Journalists and cameramen are unable to inform participants in advance that filming will take place (especially if the event is already underway). Moreover, the understanding of “timeliness” in such situations may also vary, which will cause controversy. This is because not all participants in such events will be aware of the arrival of journalists and their preparations for filming. There is a high probability that those who do not want to be filmed will claim that they were not notified in advance about the filming. And it will be practically impossible to prove otherwise.
Objections to filming
The requirement to provide the opportunity to object to filming at a rally will cause even more problems for journalists. It is unclear how this can be implemented during a large gathering.
In addition, public interest in covering not only the rally itself, but also its participants (e.g., politicians, high-ranking officials, businesspeople, or representatives of the criminal world, etc.) may prevail. Recall the Ukrainian Maidan and Anti-Maidan rallies, as well as other mass events. Therefore, filming such events should not depend on the consent of their participants. Under such conditions, the possibility of real implementation of this requirement by the media raises serious doubts.
The situation described above may create unjustified obstacles to journalists performing their professional duties and, in the worst case, completely negate their role as guardians of democracy.
Media privileges
To prevent this from happening, the media in a democratic world enjoy certain privileges, including those related to filming.
Article 15 of Draft Law No. 8153, which regulates the processing of personal data for journalistic or creative activities, establishes certain privileges for journalists and creative workers in Ukraine. It contains a number of exceptions to the general rules. However, none of them relate to the processing of personal data during audio, video, or photo recording of public events, as Article 11 is not mentioned in the relevant list.
It will not help journalists to mention that the principles of fairness and transparency in the processing of personal data do not apply to their activities. After all, paragraph 1 of part 1 of Article 4 of the draft states that personal data must be processed in a manner that ensures that the data subject is properly informed about the processing of their personal data (collection, use, and other processing, its method and scope). Exceptions to this rule must be determined only by law. However, as already mentioned, there are no exceptions for journalists and the media in terms of regulating filming.
Under these circumstances, it cannot be said that draft law No. 8153 adequately balances the protection of personal data with the right to freedom of expression and information, as required by the GDPR.
Therefore, in today’s information society, it is important to find a reasonable balance between freedom of expression and everyone’s right to privacy. Public photography and video recording, especially with subsequent distribution in the media or social networks, must be carried out in accordance with the requirements of personal data protection legislation and with respect for human dignity. And although freedom of speech is one of the fundamental rights in a democratic society, it is not absolute and should not violate other constitutional rights.
That is why it is so important to adhere to the principles of caution, legitimacy, and proportionality when photographing and publishing images of individuals. In controversial situations, the best solution is to obtain consent or consult a team of professional lawyers.
blogger / freedom of speech / intellectual property / personal data
