New social media trends have emerged in recent months involving men covertly filming women in public and uploading the videos online, and our privacy and crime teams at Payne Hicks Beach have experienced a significant rise in complaints from those who have been victim of harmful behaviour online.
Methods of intrusion have developed even in the short time since Hanna Basha and Nick Grant won record damages for Georgia Harrison in her civil image abuse case.
Jamie Hurworth’s insights were included in a feature on BBC Online on one trend where women are approached in conversation in public places – such as at the beach or at work – and filmed using ‘smart’ glasses with in-built recording functionality. In a similar recent social media trend, women are filmed while enjoying a night out, with a clear focus on their dresses and skirts, often in a sexualised manner. In neither trend are the women aware they are being recorded.
Collectively, these videos have been viewed more than three billion times, and the women featured have been subjected to significant online abuse and harassment.
But whilst reprehensible, do these covert filming trends give rise to actionable civil or criminal offences?
A Legal Grey Area
There is currently no single criminal or civil offence that expressly prohibits filming someone in public without consent. Calls have been made for legislation to be updated to reflect what has been described as a growing covert filming epidemic.
Until consolidated laws are passed, the existing legal landscape offers a range of overlapping but imperfect avenues for redress, as the law continues to struggle to keep pace with technology, AI, and online abuse.
Civil Claims
Right to a Private Life
The law protects an individual’s right to a private life, which extends to both public and private spaces. Simply being in a public place does not automatically make someone fair game for intrusive filming and neither does it give a defence for publishing the video online.
Historically, a claim for misuse of privacy has been used in claims against media organisations involving intrusive paparazzi conduct. Hanna Basha was part of the team representing Naomi Campbell in her landmark privacy claim where the Court found that Ms Campbell had a reasonable expectation of privacy even though she was on a public street.
Whilst there are defences to misuse of privacy, it is difficult to identify any that would apply in these recent social media trends. This is neither undercover reporting to expose wrongdoing nor CCTV used for security. In simple terms, this is voyeuristic behaviour.
Data Protection
Ordinarily, individuals who film and post purely personal videos with no commercial connection fall outside data protection legislation.
However, many of those filming and uploading this content are influencers, often claiming to provide dating advice or showcase nightlife, with a clear commercial motive to maximise engagement and algorithmic reach.
Where videos are used to promote services, drive revenue, or build an online brand, the content creators may be required to demonstrate a lawful basis for processing personal data, which is unlikely to apply in these circumstances.
Criminal Offences
Online Safety
Mark Jones has been advising and providing insight on the criminal offences created by the Online Safety Act 2023 targeting emerging harmful online behaviours, including deepfakes, downblousing, and intimate image abuse.
The Act requires social media platforms to remove illegal content, including intimate image abuse and sexual exploitation. New offences and takedown measures are also due to be introduced, partly in response to the trend of users requesting AI chatbots (such as Grok) to generate sexualised images of women.
Although the offences under this Act are unlikely to apply to conversations recorded on smart glasses, the legislation provides important context for more extreme examples of covert or sexualised recording.
Voyeurism
It is a criminal offence to obtain sexual gratification from watching or recording someone engaged in a private act – such as undressing, bathing, or sexual activity – without their consent, or to operate equipment enabling others to observe such acts. A key element is whether the individual being filmed reasonably believed they were in a private setting and would not be seen or recorded.
A new Private Members’ Bill introduced by Liberal Democrat MP Wera Hobhouse proposes to create specific offences to bolster the law in this area in light of these recent social media trends.
Upskirting
There is also a specific offence of upskirting. This offence commonly occurs in crowded public spaces. Again, in cases where a video focuses on a woman’s skirt or dress in a sexualised manner, this legislation may be engaged depending on the footage captured.
Harassment
Originally introduced to combat stalking, the Protection from Harassment Act 1997 also makes it a criminal and civil offence to engage in a course of conduct designed to cause alarm or distress or which is otherwise oppressive or unreasonable. This offence might also be committed in these cases, but there is the need to prove that it was a course of conduct, namely two or more occasions rather than an isolated incident, unless the conduct is sufficiently serious.
Legal, Practical and Technological Hurdles
This troubling trend is uncomfortable to watch, and the derogatory, sexually explicit reactions it attracts online are entirely unacceptable. It amounts to sexual exploitation disguised as social media content, with the potential for serious and lasting harm to the women filmed.
Its viral spread reflects a broader online harms ecosystem, where intimate and exploitative behaviour becomes monetised content. Several challenges arise. Legally, a range of offences may be relevant, but none perfectly address this specific form of covert filming. Technologically, online social media platforms do not yet ensure quick and robust processes for removing content or stopping abuse. Manufacturers of smart glasses also do not yet guarantee clear privacy safeguards and educate users on acceptable and lawful use. Practically, many posters are individual creators, often overseas, who may be unaware or unconcerned about the unlawfulness of their actions.
Ultimately, accountability must run through the entire ecosystem to drive meaningful change. Until this accountability is embedded, we expect that the methods of intrusion will continue apace with the law struggling to keep up.
For further information, please contact your usual contact in the Dispute Resolution Department or, alternatively, telephone on 020 7465 4300
