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Videographer posts client’s wedding video on social media without consent

PIPEDA findings #2014-020

May 22, 2014

Description

An individual complained that a videographer she hired to record an event was sharing her personal information without her consent by using the video he produced for her wedding to promote his business online. We determined that the complainant’s personal information was being used for a commercial purpose and under PIPEDA, an individual’s personal information cannot be used or disclosed in this way without the prior and informed consent of the individual. We found no evidence to indicate that the videographer either sought or obtained the necessary consent. Ultimately, the videographer did agree to take down all postings of the complainant’s video, and stated that contracts with future clients would include provisions relating to consent.

Takeaways

  • Even though no commercial transaction may be involved, promoting products or services online is considered a commercial activity.
  • If you are a videographer or photographer, you need your client’s consent before posting videos or photos of them online for promotional purposes, whether on websites or social media.

Report of findings

Complaints under the Personal Information Protection and Electronic Documents Act (“PIPEDA”)

  1. The complainant alleges that a videographer is using her personal information without her consent. Specifically, she alleges that the videographer, who provided her with videography services, used her video for promotional services without her consent.

Summary of Investigation

Information from Complainant

  1. The complainant hired the videographer for an event. Following the event, it came to her attention that the video produced by the videographer appeared on its business listing on a website which lists vendors for event services. The video had also been uploaded to social media websites by the videographer.
  2. In an email to the videographer, the complainant states that she did not agree to allow her video to be used for commercial purposes, and that had she been asked to consent to such purposes, she would have refused.
  3. The complainant asked that the video be removed from the videographer’s business listing on a website which lists vendors for event services; this request was refused (for reasons detailed below). The videographer offered to remove the video after additional portfolio material (videos of other events) had been created; the complainant did not consider this an acceptable compromise. Subsequently, the complainant requested that all online copies of the video uploaded by the videographer be removed. This request was also refused.
  4. The complainant provided our Office with a copy of the contract signed between herself and the videographer. This contract was very brief, and described only details about the event (date, time, and participants’ names), the services to be provided (6 hours of videography, “short music edit”, “raw footage”), and the associated price.

The respondent’s position

  1. In their response, the videographer notes that this particular type of event was the first such event for which it had provided videography services, and acknowledged that the written contract was lacking in detail. However, the videographer states that he had come to a verbal agreement with the complainant, by which services would be provided at a reduced rate in exchange for the ability to use the final video product as part of an online portfolio. The videographer acknowledges that this arrangement was made verbally, and not documented.
  2. The videographer stated that, as creator of the video, it maintains the right to display and otherwise use it, based on copyright. During an email discussion with the complainant, the videographer offered to assign her this right for an additional cost; the complainant rejected this offer.
  3. In further discussions with our office, the videographer acknowledged that it had not obtained consent for use of the video for commercial purposes; as such, the offer was made to remove the video from the website which lists vendors for event services. However, it questioned whether the hosting of the video on social media websites could be considered commercial activity.

Application

  1. In making our determinations, our Office applied subsection 7(2) of the Act and Principle 4.3 of Schedule 1 of the Act.
  2. Principle 4.3 states that the knowledge and consent of the individual are required for the collection, use, or disclosure of personal information, except where inappropriate.
  3. Subsection 7(2) enumerates the circumstances under which an organization may use personal information without the knowledge or consent of the individual.

Findings

  1. In this case, our Office examined three primary issues: (i) did the use of personal information constitute commercial activity; (ii) did the videographer have consent for this use; and, (iii) did the videographer need consent for this use?

Commercial Activity

  1. The videographer posted the complainant’s video on social media websites, and subsequently embedded the video stored on these websites into its listing on a website which lists vendors for event services.
  2. The embedding of this video into the videographer’s listing on a website which lists vendors for event services was done for commercial purposes – to provide an example of the videographer’s work in order to attract future clients.
  3. The videographer also did not provide a reason for posting the video on social media websites other than to show potential future clients their portfolio of work which, in our view, also represents a commercial purpose.
  4. As such, our Office finds that this use of personal information did constitute commercial activity.

Did the Videographer have Consent?

  1. The videographer has argued that it obtained verbal consent from the complainant for use of her video to advertise its business (i.e. by providing future potential clients with an example of the videographer’s work), in exchange for providing services at a lower rate. The complainant has countered that she both did not, and would never have, agreed to such a term.
  2. Regardless, no documentation exists of such an agreement, and the alleged price reduction was not mentioned in the contract between the parties. The videographer did not seek consent for this use from the complainant at any other point.
  3. As such, our Office finds that the videographer did not have consent for this use of the complainant’s personal information.

Did the Videographer Need Consent for this Use?

  1. The videographer questioned whether it needed consent to use the video in question, for two principal reasons: (i) the video was artistic in nature, and (ii) the videographer asserted copyright over the video, which it states permitted it to use the video as it saw fit.
  2. Subsection 7(2) of the Act describes the circumstances under which an organization may use personal information without the knowledge or consent of the individual. While our office does not enumerate these circumstances here, our Office does find that none of the listed exemptions apply in this case.
  3. Our Office thus finds that the videographer required, but did not obtain, consent for the use in question.

Conclusion

  1. Though the videographer maintained its objections, it removed the video in question from its listing on a website which lists vendors for event services and from the social media websites to which the video was uploaded. The videographer also stated that consent language would be added to contracts with future clients.
  2. Accordingly, we conclude that the complaint is well-founded and resolved.
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