Is it legal (US) to target drunk people and interview them to create (commercial) content a.k.a. street interviews?

Question

In some forms of street interviews, people seem to specifically target intoxicated pedestrians, some seemingly exclusively young women, put camera and microphone in their face and try to get them answer very intimate question about their sexual life.

On the one hand, interviewing people in the street is a long established practice of journalism and there seems to be nothing special about the format of creating entertainment-journalism by people who run their own YouTube or other video platforms per se.

On the other hand, it would seem that specifically targeting intoxicated people in order to expose private information that they might later regret sharing with the general public (audience), forever stamped into the collective memory of the Internet, a ramification not typically understood by those intoxicated, may go against the idea of proper consent or how a legally binding contract should come to exist. I can see how under certain conditions (evolving events, questions of a "regular" nature) an interview given, even when intoxicated, could be viable, but targeting intoxicated people as a business practice seems to be wrong.

So is it legal, illegal, not yet decided or does it depend on the state?

Answer 1

Is it legal (US) to target drunk people and interview them to create (commercial) content a.k.a. street interviews?

Basically yes, this is legal.

In some jurisdictions (California has the strongest right of publicity, most other states are weaker, some states have none), there is a right of publicity for commercial use of someone as a model or image, but generally satire or parody or journalism, which is what this is likely to be, is not subject to this limitation.

That fact that someone is drunk is irrelevant. The fact that someone looks stupid and is embarrassed by what they say is irrelevant.

On the other hand, it would seem that specifically targeting intoxicated people in order to expose private information that they might later regret sharing with the general public (audience), forever stamped into the collective memory of the internet, a ramification not typically understood by those intoxicated, may go against the idea of proper consent or how a legally binding contract should come to exist.

Absolutely not. And, responding to a street interview doesn't create a contract and doesn't require consent (except to the extent that payment of a right of publicity amount is required).

There is no right to be protected from saying things you regret in U.S. law and with the possible exception of California, which I haven't researched on this point, there is no right to be forgotten. A European style right to be forgotten would probably be unconstitutional under the First Amendment in any case.

Answer 2

The basic principle in the US is that anything which happens in a public space may be photographed, filmed, or recorded.

However, you cannot publish someone's clearly recognizable likeness without a model release except for background of crowd scenes and other cases where their specific presence is clearly incidental rather than the focus of the recording. There are a few other fair use cases, such as news reporting, but as a very rough guideline you can think of it as having copyright over your own likeness subject to those fair use rules.

Note that the issue is publishing / distributing. Taking the recording is allowed; playing it back for anyone who was not present at the time is not, again subject to fair use.

One of the best photos I've taken can probably never be published, because the young lady is essential to the composition, I didn't get a model release from her parents, and though she has been an adult for a long time now and could sign on her own behalf, I have no idea where to find her and ask. I can post an enlargement of the photo on my own wall. If I'm being honest, I can't post it on the web, or let others do so.

So yes, in the US you can be filmed drunk the moment you step off private property. But there are limits on what people can do with the film without being liable to civil lawsuit.

(I've dabbled in both the visual and audible arts; I've had reason to investigate. But, standard disclaimer, I am not a lawyer.)

Addendum: Note that public figures, such as politicians and performers, have a lower expectation of privacy under US law. I do not know the details, but beware of assuming that because an embarrassing photo of a presidential candidate can be safely published the same photo of someone else could be.

There are undoubtedly other edge cases; I believe minors may have an increased expectation of privacy. But I am not a lawyer, and if I was, I would probably be charging anyone who wanted more specific advice. This is, as I said, my best understanding of the best practices for a professional, based primarily on articles on this topic published in photographers magazines and discussion with recording engineers. I may be out of date, and may be misremembering. If it really matters, get professional advice.

Answer 3

austria

In Austria, it is illegal to publicly distribute images of people if doing so would violate their "legitimate interests". (§ 78 Abs. 1 Urheberrechtsgesetz)

So, yes, you can interview them, but if they do or say something embarrassing, publishing it without their permission can get you in legal trouble.

Answer 4

france

In France, it is illegal (except specific circumstances)

Article 226-1 of the French penal code:

Est puni d'un an d'emprisonnement et de 45 000 euros d'amende le fait, au moyen d'un procédé quelconque, volontairement de porter atteinte à l'intimité de la vie privée d'autrui :

1° En captant, enregistrant ou transmettant, sans le consentement de leur auteur, des paroles prononcées à titre privé ou confidentiel ;

2° En fixant, enregistrant ou transmettant, sans le consentement de celle-ci, l'image d'une personne se trouvant dans un lieu privé.

3° (...)

Lorsque les actes mentionnés aux 1° et 2° du présent article ont été accomplis au vu et au su des intéressés sans qu'ils s'y soient opposés, alors qu'ils étaient en mesure de le faire, le consentement de ceux-ci est présumé.

Impunging on another’s privacy is punished by up to one year of jail time and €45000 fine, when one, by any procedure:

1° records or transmits words spoken under an assumption of privacy or confidentiality, without the consent of the speaker;

2° records or transmits the image of a person located in a private place, without the consent of that person;

3° (...)

When acts mentioned in 1° or 2° have been made in view of the targets, and they did not object while being able to do so, their consent is assumed.

Intoxicated persons lack the clarity of mind to object to potentially-embarrassing recordings, so their consent cannot be presumed. The main difficulty for the prosecution is to prove that the words were "spoken under an assumption of privacy or confidentiality". The translation may be a bit questionable but the original, à titre privé, does not necessarily means the information is secret or embarrassing, just that it is not destined to be shared widely (e.g. a wife telling her husband to buy milk on the way home qualifies). It is fairly obvious that the video has value specifically because it features people saying things they usually do not say out loud in public, and they do so because they are drunk and do not completely understand the context (of being filmed etc.).

Of course, if one of the interviewees regularly makes comments about her sex life on public platforms (social media, blog, etc.), under her real name, the defense may credibly argue that this specific person did not speak under an assumption of privacy. But that would be a factual determination specific to that person.