The Ethics of Creators Recording Strangers

Pull out your camera in public 10 years ago, and the chances were pretty high that you’d get a warm reception—maybe even a photobomber contorting their face or throwing up the peace sign in the background.

Today, whip out a camera in public and you likely won’t get an embrace so pleasant. You likely will get a diversion of eyes, or even a request not to post whatever you captured.

That aversion to “surprise, you’re on camera” has sprouted up in response to a recent trend that’s come to dominate many corners of our industry: creators capturing footage of strangers—whether as a fly on the wall or as an upfront Billy on the Street-style interaction—and using it for content. And it works.

How it manifests varies from creator to creator. There’s an observational approach popularized by accounts like Barstool Sports (which posts random public sightings to its 22 million followers) and Hot Guys Reading. The more direct approach is seen from creators like Julian Shapiro-Barnum, whose Recess Therapy posts interviews with kids (most famously, the Corn Kid), and comedian Hannah Berner, whose TikTok recently surpassed 1 million followers thanks to her viral interviews quizzing guys.

But underneath these seemingly innocuous filmed everyday interactions, there’s a complicated ethical question that creators have recently brought up: Is it okay to use strangers—some consenting, others not—in content filmed for the purpose of reaching as many people as possible?

Let’s answer that—starting with the basics:

Why do these stranger interactions take off?

Jules Terpak, digital culture researcher and reporter, shared with us some theories:

The average person’s online reach is far greater than it was 10 years ago. Less content is being served to friends, and more is being served to the algorithm—which feeds it to the masses.

“Our social media presence [used to be] a slightly bigger personal bubble because of the lack of recommendation algorithms,” Terpak said. “Today, recommendation algorithms and virality are beginning to run the experience of the average user more and more. This creates more volatility when it comes to what can be done with a single piece of media.”

That volatility means any video from any creator could go viral under the right circumstances—which leads to the chance for widespread fame (or infamy).

Take Tariq, the aforementioned Corn Kid, who now has college savings thanks to his on-camera conversation and charisma. Mason Ramsay, who was filmed by a stranger while yodeling in Walmart, now has a thriving music career. Both positive developments.

But not all “recording a stranger” incidents are so constructive: Take the Central Park bird watching incident when a white woman was recorded unnecessarily confronting a Black bird watcher. Or West Elm Caleb, who got dragged on TikTok for bad dating behavior (the direct consequences for Caleb himself are unknown, but plenty of brands have capitalized on it)...the examples go on and on.

Big picture: There’s a cultural shift taking place that’s blurring the line between creator and regular person—everything is content, and everyone is a creator.

Phones are weaponized—as a sword and shield, as a means of catching someone in the act, or as an instrument for collecting receipts—even in times when such weapons are uncalled for. And the world is the battlefield, as viewed through a super-smart algorithm.

So what is the creator’s responsibility in this growing culture of surveillance?

We need look no further than the ubiquitous man-on-the-street shows to see responsible—and irresponsible—ways this can play out.

The good: Shows like What’s Poppin? With Davis approach their content like a network might—people in the videos sign consent forms after they’ve been filmed to confirm they want to participate.

“As the show got more popular, we started working with brands, and they required us to have a release form, which just became a part of our process,” Sol Betesh, CEO of Fallen Media, the network behind What’s Poppin?, told us. “Even with the consent form, if someone asks us to take it down, we will. It’s just one video, and it’s not worth having anyone upset over.”

The questionable: Shows like this one, which asks “hot people” on the streets of NYC what they do for a living, muddy the waters. It’s unknown whether or not they get consent to film, but its relatively superficial premise feels iffy.

Terpak explained the importance of making conversations about consent to filming plain and upfront: “I think it's important to make it clear to interviewees what they are getting into: ‘Are you okay with the potential of virality?’ ‘Are there any answers here today you would like to not have posted?’ ‘Here is my email in case you need to contact us.’ And so on. Consent is of course important, but also giving interviewees tools to have some level of autonomy over their digital footprint.” Terpak said.

What does the law have to say about all this?

It’s complicated.

There is no constitutional right to privacy, but the Supreme Court has said that several amendments have created a right to privacy. They’ve extrapolated these amendments to create laws.

One such high-profile Supreme Court case that peddled in privacy was Roe vs. Wade. It entered our history books as a case about abortion, but Roe was actually decided on the right to privacy implied by the 14th Amendment, protecting abortion as a fundamental right. And it was reversed based on the Court’s interpretation of privacy as well.

Ultimately, privacy is a state-by-state legal issue. And the right of publicity—the right to control your name, image and likeness—comes out of a right to privacy in a lot of states.

So when it comes to recording people for content, the subject is entitled to those rights as long as there’s a reasonable expectation of privacy. But in public places, those typically don’t apply. Generally, when you are in public, it is legal to record someone via audio or video. That applies equally to adults and children, save for a few exceptions like child pornography laws.

The threshold question is whether you have a reasonable expectation of privacy for where you are. For instance, the girl who recorded her argument with another woman in a stadium bathroom is technically in a public place. But if she recorded someone in the stall of the bathroom instead of by the sinks, you could argue there was an expectation of privacy in the stall.

What responsibility do the platforms have (if any)?

For the most part, any legal ramifications would fall on the person responsible for posting, not the website where they posted it. However, the law does require that if the image or video should violate the law—be it copyright or violating child pornography rules—platforms must have a means to remove the content in question.

Will the law ever change to account for citizen surveillance?

“It’s a theme that the laws haven’t caught up to this digital era,” lawyer Ellie Heisler shared on Emily Ratajkowski’s podcast exploring internet privacy. “My assumption is there will be some changes in the future because tech evolves so quickly and there are these new issues that are recurring and I think the courts will be fed up with dealing with certain issues over and over again.”

Our Take

Ethics is often about intent. In many situations, it seems that virality being at the forefront of a creator's mind above anything and everything creates content that isn’t always beneficial for the interviewee. But creators who keep in mind they are capturing humans first and content second will bring value outside of just entertainment to viewers, and that intent shines through.

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