By Bibitayo Emmanuel Ojo
Introduction
Without a question, every source of income is steadily migrating into social media, as businesses increasingly rely on social media to reach their target consumers. Prank has become one of the key contents of the social media landscape as a way of amusement, purposefully aimed to bring public attention to perpetrators’ walls and create comments in a social media-driven economy of pay-per-click/view.
Beyond the humour and ecstasy of pranks which gratify the impulses of the larger audience, it is worthy of note that the pranks instigate several legal issues among legally minded people and victims of pranks who are sometimes left stranded due to ignorance of their rights and remedies. This balance of economic, societal, and personal interests of individuals is important to help pranks less harmful to persons as well as marketing outcomes. In this article, I consider some of the legal issues that implicate pranks, especially on social media.
Online Pranksters’ Modus Operandi
A prank is a ludicrous event or acts performed to entertain, amuse, or ridicule others. It is, as anthropologist Richard Bauman correctly suggests, an act of humorous deception[i]. A trickster plays a practical prank on an individual (i.e. a victim) who does not anticipate being the topic of any derision or comedic situation.
A prank is not a new occurrence in the world of entertainment, and television producers have exploited it frequently for decades. Practical jokes, on the other hand, have just recently begun to be used for online branding reasons in modern marketing, contributing to one of the most recent trends.
Professional pranks are usually complicated performances that are prepared ahead of time and have predictable outcomes. Pranks have become a current execution approach for promotional messaging aimed to capture consumers’ attention in a highly congested environment in digital media. They are increasingly being used as captive content for videos distributed online by brands in order to market themselves and generate leads. Such video pranks show naïve customers being trapped or set up by actors in pre-planned marketing stunts.
As a result, “prank videos,” much like the traditional comedy process, frequently exhibit a number of characteristics that are not favourable for anyone engaged in the creation, execution, or viewing of the video. Most YouTube prank films that cause such issues feature the content creator, or prankster, approaching strangers who are going about their business and pulling any number of different “pranks,” which in this context aren’t even typical pranks. The so-called “prank” is frequently little more than a simple annoyance, such as asking a vague or provocative question, acting in a deeply unusual way around strangers, or blatantly pestering them. Even worse, some content producers stage their videos with actors but fail to disclose to the audience that the circumstances are made up. Even worse, some video producers use sexist or racist taglines to draw in more viewers and boost ad income. All of these elements combine to produce videos that are highly obscene on the part of the content provider and cause viewers to respond in a distressing manner.
Prank victim’s reasonable expectations of privacy
The primary goal of this article is to amplify the likely data privacy issues emerging from video pranks and pranksters in this astronomical development of technology and social media. The majority of these issues stem from a reasonable expectation of privacy.
The concept of a reasonable expectation of privacy is the belief that there are some places and times when you may properly expect to be free from public scrutiny. This often comprises the home as well as the curtilage of the home, which may include the yard or garden, as well as any shed or other structures.
Because a person has a reasonable expectation of privacy, anyone who unreasonably and seriously jeopardizes another’s interest in keeping her affairs private can be held liable for that exposure or intrusion.
Ordinarily, a home is where there should be a reasonable expectation of privacy, however, a level of privacy is expected in the public. Although, reasonable expectation of privacy can be tricky outside the home as someone may not have a right to seclusion when in public view. The law can still protect people from being portrayed in a way that could be considered humiliating or from having their private details broadcasted since the public doesn’t have a legitimate interest in such information and the victim reasonably expect the conversations to expectation
In Katz v. United States[ii], the court handed down the tests for determining when the public has a general expectation of privacy. These objective tests are as follows:
- The individual has a reasonable expectation of privacy in the situation at hand.
- That expectation was one that society would accept as reasonable.
This implies that the individual must identify the situation at hand as one that needs to be kept private from the general public and that such expectation must be accepted by the general public after passing through the spectrum of reasonability tests. As a result, an individual at his home, in the vicinity of his home, or in public whose private discussion or acts are not intended for public consumption has a reasonable expectation of privacy. An exception to this rule is where quality consent for publication is acquired. To gain quality permission, the target must agree to be a part of the prank and to the prank being recorded for public viewing. There must be clear clarity about what will be involved. Obtaining consent from someone for something they do not understand is not consent. Lack of consent is a sufficient reason to contest the prankster’s handling of a victim’s data.
The question that came to mind is whether prankster has a legitimate interest in the processing of hoax videos. Unlike the Article 6(f) of the General Data Protection Regulations (GDPR) the Nigerian Data Protection Regulation (NDPR) does not provide for Legitimate interest as a basis for the lawful process of personal data in Nigeria
Legitimate interest occurs when data processing is required to further the data controller’s legitimate interest. A data controller’s legitimate interests can include economic interest, justice et al. Prank videos may be of economic interest to a prankster. However, where the interest of a prankster conflict with a victim’s fundamental right that must be protected, the victim’s interest takes precedence. It is reasonable to conclude that a prankster can have a legitimate economic interest in processing such data only if his interest would not conflict with that of a data subject.
Since pranks cannot be separated from the invasion of the victim’s privacy, there is a conflict with the fundamental right to privacy and freedom in most pranks, and as such, the prank victim’s interest takes precedence. Against this backdrop, it is arguable that a prankster’s legitimate interest is undermined when there is an invasion of privacy unless quality consent is obtained
In what ways do pranks invade privacy
Prank is not expressly captured or defined in the Nigerian legal framework; however, it is argued that unauthorised video recording either in private or public is against the spirit of constitutionalism and a breach of privacy. Section 37 expressly provide for the right to privacy of citizen in the home, on telephone conversation, correspondence, and telegraphic communication. It is argued that this list is not exhaustive and due to its generic nature, it is construed to accommodate unauthorized video or call recording. This argument was given a judicial flavour in the case of Nwali v E.B.S.I.E.C & Ors.[iii] where it was held that the entire Section 37 does not suggest any restriction on the interpretation of the provision and as such, to maximize the intention of the drafter, the provision is to be interpreted literally, expansively, and extensively. From the foregoing, it is contended that unauthorised prank video is a breach of data privacy enshrined in Section 37 of the Constitution.
In the same vein, an unauthorised video recording is not lawful let alone when it is broadcasted without the consent of the prank victim. Consent is one of the conditions that is sine qua non to the lawful processing of personal data. It is required of a data controller to ensure that the consent of a data subject is obtained without fraud, or coercion, and must ensure that the data subject has the legal capacity to give consent.[iv]
Where it is established that the data subject has not expressly consented to the broadcast of a video in which he’s featured, it suffices to say that there is no lawful basis for processing such personal data and a further step to broad such video will amount to a breach of data privacy.
Remedies available to victims
Petition to the Regulatory Authorities.
A hoax victim’s first option for relief is to make a request for the removal of the content from public view, especially if the video has gone online. Where the prankster refuses to withdraw the content, the prank victim can also report such a breach to the NITDA through any of the advertising channels. This is a provision in line with Articles 2.10 and 4.1(8) of the NDPR. See Article 9.1 of the Nigeria data Protection Regulation 2019: Implementation Framework
An Action for Enforcement of the Right to Privacy
Pranksters frequently violate the privacy of their victims and distribute their videos without permission. Consent is crucial when dealing with people’s data; when it is shared unlawfully, a victim may file a lawsuit to enforce their right to privacy. It has been determined that data privacy rights fall under the right to privacy that is guaranteed and protected by Section 37 of the Federal Republic of Nigeria’s 1999 Constitution.
Damages and Injunction:
The most typical remedies sought are monetary compensation and an injunction. The courts will, however, take a flexible approach to remedies because the legislation relating to misuse of private information/breach of confidence includes a broad variety of factual situations. Consequently, where the prankster has already made an unauthorized disclosure of the information and has profited commercially from doing so, the appropriate remedies may be damages or an order for an account of the profits, an injunction to restrain any further publication. On the facts of one case, an injunction preventing further broadcasting of such content will be the most important remedy to give effect to the victim’s right to privacy.[v]
Conclusion
Massive technological advances over the last decade have resulted in complex legal challenges that legislators could not have predicted. A profound example is the video prank that is flooding social media. With this development, a threat has been posed to the privacy of citizens on the internet. Although, the right to privacy is elusive to most hoax victims of pranksters, notwithstanding, that does not affect its enforceability. It is therefore imperative to intimate the data processors and the public about the effect of pranks on the privacy of citizens online and the likely remedies in the event of a breach.
Footnotes
[i] R. Bauman, Story, Performance, and Event: Contextual Studies in Oral Narrative, Cambridge UP, Cambridge 1986, p. 144.
[ii] 389 U.S. 347
[iii] (2014) LPELR-23682(CA)
[iv] Article 2.3 of NDPR
[v] Section 46 of the Constitution and Article 4.2 of the Nigerian Data Protection Regulation.