Analysis: let's look at some aspects of the question and explore some laws that may be relevant
By Rónán Kennedy and Abigail Rekas, University of Galway
Although you might think a legal question should have a straightforward black-and-white answer, this is rarely the case, and many lawyers will respond with 'it depends' before asking for more details. Details matter a great deal when the question involves the worldwide dissemination of content across different platforms and countries.
This includes whether you created the video, the content of the video, and how the video is being used. Your location and where the video has gone viral may also matter. We would also like to clarify that this piece is not legal advice; if you have a real problem, you should consult a lawyer.
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From RTÉ Radio 1's Brendan O'Connor Show, information security and data protection expert Carey Lening about protecting you information when searching online
With those caveats in mind, let's look at some aspects of the question and explore some laws that might be relevant. One approach might be to rely on data protection law. Anyone who (re-)posts, (re-)tweets, likes, or otherwise boosts a video about an identified or identifiable individual is engaging in data processing and needs a legal basis for this.
The European courts have said that even those operating Facebook ‘fan pages’ have data protection responsibilities, so relatively casual or recreational uses are covered. There is an exception for ‘household use’ but this is relatively narrow, and (for example) inclusion of local news on a website is controlled by the GDPR. You can complain to the individuals concerned, the platform, or the national data protection authority (in Ireland, the Data Protection Commission). You can also sue for compensation but this is likely to be slow and expensive. While GDPR has global scope, enforcing a ruling outside the EU may be challenging, particularly if the platform has limited European presence.
If the video is ‘intimate’ or is being posted as part of a campaign of harassment, you might have more success. Coco’s Law (more formally, the Harassment, Harmful Communications and Related Offences Act 2020) makes the non-consensual distribution of intimate images, including faked ones, a criminal offence. This can be reported to hotline.ie and to An Garda Síochána, who do investigate and prosecute. The new Online Safety Commissioner (OSC) will have a role in policing harmful content online but Coimisiún na Meán (of which the OSC is a member) is not yet ready to process individual complaints.
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From RTÉ Radio 1's Drivetime, Jackie Fenlon, campaigner and mother of Nicole Fox, on Coco's Law
If the video was taken by you, or someone who was acting under your direction, you could also use copyright law and notice and takedown policies to require its removal. Even if a video is something recorded casually or for fun, it is probably copyrighted by whoever took it. There are no formal registration requirements for copyright protection.
Social media platforms are generally pro-active about taking down copyrighted content being distributed without the owner's permission. Liability rules vary around the globe; for example, under European law, a platform should act ‘expeditiously’ to take down illegal information, or they will be liable for infringement. However, this may mean that you have to threaten to sue in order to be taken seriously, and if the platform is hosted far away, you might not have any practical options.
Nonetheless, many platforms will have a notice and takedown procedure as required under US and EU law, which streamlines the process of making a claim of unauthorised use. Unfortunately, you will have to ‘police’ your own content, meaning you need to be on the lookout for potential infringing videos. Most jurisdictions also allow for unauthorised uses of copyright content for the purposes of commentary, criticism or news reporting. If the video is viral based on others commenting on it, or if the spread of the video becomes a news story in its own right, media organisations may be able to report on it and perhaps re-use parts.
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From RTÉ Archives, one of Ireland's first viral videos featuring a poor lad slipping on ice during a RTÉ News report in 2010
Finally, you might be able to use privacy, publicity, or image rights to require the video be taken down. The details of these vary from country to country, but are about protecting your identity, including your name, image or voice from unauthorised use.
A major difficulty with these is that they are a global patchwork. The United States is a bramble patch of overlapping and occasionally conflicting laws drawn from the national trademark statute (the Lanham Act) and state-based privacy and publicity laws. There are a variety of national approaches in Europe and beyond.
You might be able to use privacy, publicity, or image rights to require the video be taken down
In Ireland, there is currently no legislation on such a right, although there is a ‘right of personal portrayal’, which is relevant to trademark law. But there are some cases on breaches of the constitutional right to privacy involving images, including printing of unauthorised images in a newspaper, participation in a publicity campaign for an airline, and unauthorised use of images of sports celebrities in advertising (Roy Keane and Mary Peters, both of which settled out of court) that indicate an Irish court might accept a claim based on a viral video.
All of these options will take time and money to pursue - although the copyright notice and takedown route is probably easiest) - but it is possible they may lead to success in the end. One notable example of litigation on viral videos is the case of Eoin McKeogh, a student who was wrongly accused of not paying a taxi fare. He obtained court orders requiring not only that the video in question be taken down from social media platforms but that the platforms would proactively prevent it from being reposted. This was after a long and expensive court process. While that precedent might ease the road for others, you will need resources to follow it.
Dr Rónán Kennedy is a lecturer in the School of Law at the University of Galway. He is a former Irish Research Council awardee. Dr. Abigail Rekas is a lecturer in the School of Law at the University of Galway.
The views expressed here are those of the author and do not represent or reflect the views of RTÉ. This article does not constitute legal advice, and is for informational purposes only
