Guidance note: Recording people at public events (Part 1: Individuals)

Taking photographic or videographic footage of people at public events is commonplace and has increased in the age of smartphones that produce high quality photographic and videographic footage. It would be unrealistic for individuals in Bermuda to expect absolute privacy at public events. Over the next couple of weeks, the Office of the Privacy Commissioner for Bermuda (PrivCom) will address this topic in a series of guidance notes. In Part 1 of this guidance note, PrivCom provides guidance as to whether photographic and videographic footage constitutes personal information and how the Personal Information Protection Act 2016 (PIPA) may affect individuals recording people at public events in their personal capacity.

Context and definitions

PIPA, which came into full effect on 1 January 2025, is Bermuda’s data privacy legislative framework. PIPA regulates the use of personal information by organisations in Bermuda. The overarching aim of PIPA is to protect individuals’ personal information whilst allowing legitimate uses of personal information by organisations.

Under section 2 of PIPA, an “individual” means a natural person. Section 2 of PIPA defines an “organisation” as any individual, entity or public authority that uses personal information in Bermuda.

Furthermore, under section 2 of PIPA, “use” or “using”, in relation to personal information, means carrying out any operation on personal information, including collecting, obtaining, recording, holding, storing, organising, adapting, altering, retrieving, transferring, consulting, disclosing, disseminating or otherwise making available, combining, blocking, erasing or destroying it.

According to section 2 of PIPA, personal information means any information about an identified or identifiable individual. Sensitive personal information is defined under section 7 of PIPA as any personal information relating to an individual’s place of origin​, race, colour, national or ethnic origin, sex, sexual orientation, sexual life, marital status, physical or mental disability, physical or mental health, family status, religious beliefs, political opinions, trade union membership, biometric information or genetic information.

Is photographic and videographic footage “personal information”?

Photographic and videographic footage of individuals may constitute personal information under PIPA where an individual can be identified from the footage. The capturing of a person's image or video and/or its subsequent use by an organisation may constitute use of personal information within the meaning of PIPA.

With respect to sensitive personal information, if an individual whose imagery has been captured can be identified from an image or a video and the above elements as noted in the definition of sensitive personal information can be further identified from the photograph or the video, then the individual’s personal information that is in the possession of an organisation may be sensitive.

Who does PIPA apply to?

In circumstances where the photographic or videographic footage of a person is being taken in a public setting, whether or not PIPA applies will depend on whether the personal information of the person who is being recorded was captured by

1. an organisation or

2. an individual in their personal capacity.

If the imagery was captured by an organisation, PIPA is likely to apply. Part 2 (forthcoming) of this guidance note will address how PIPA applies to organisations who are recording people at public events.

If the imagery was captured by an individual in their personal capacity for personal or domestic use, PIPA is likely not to apply.

Photographs and video recordings by individuals in their personal capacity

As per section 4(1)(a) of PIPA, PIPA does not apply to the use of personal information for personal or domestic purposes. This is referred to as an exclusion, which means that if individuals only use personal information for such things as writing to friends and family or taking photographs or videos for their own personal or domestic use and enjoyment, they will not be subject to PIPA. For example, the contents of a filmed domestic conversation may not be covered by PIPA when it is videoed at home and not published. Importantly, when taking photographs and recording videos in their personal capacity, individuals should bear in mind that it is always good practice to first ask the person or persons who they wish to photograph or record for their written consent.

Another example of how the exclusion under section 4(1)(a) of PIPA may apply is when an individual is taking a picture or recording a video of friends in a public setting for personal use and accidentally captures the imagery of individuals in the background. So long as the photograph or video was taken by the individual in their personal capacity to be used for a personal or domestic purpose, such use of personal information will likely not fall under the scope of PIPA. In situations where photographic or videographic footage taken by an individual in their personal capacity may accidentally capture other persons in the background, it is good practice for the individual who took the photo or video to ensure that the persons captured are not shown in a way that makes them identifiable. This can be achieved by blurring, blacking out the image or making it indistinguishable by other means.

However, the exclusion under section 4(1)(a) may not apply to secondary uses of photographic and videographic footage that contains the personal information of other people. If an individual publishes, sells, shares, or otherwise uses photographic and videographic footage that contains people’s personal information, such secondary use of personal information may fall under PIPA.

Conclusion

Uses of photographic and videographic footage of people at public events recorded by individuals in their personal capacity are likely to fall outside of PIPA. However, it is important for individuals who intend to take photographic or videographic footage of other people in their personal capacity in a public setting to:

1. respect people’s privacy; and

2. familiarise themselves with legal, professional, and ethical standards (for example, the Bermuda Media Council) and adhere to them.

   
   

In Part 2 of this guidance note, PrivCom will provide guidance for organisations on the lawful conditions for using personal information when recording people at public events. The guidance note will also discuss exclusions and exemptions under PIPA.