Can passengers take photos and videos on a plane? An airline approached us seeking guidance because the increasing likelihood of passenger recordings made on board a flight has clear privacy implications for the air crew and the other passengers.

The airline says it has noticed an increase in the use of social media on flights, particularly as in-flight Wi-Fi becomes something that airlines are increasingly offering passengers.

The airline’s enquiry is similar to those we have received from DHBs about the recording of patients and staff in hospitals. And it’s a subject that has come up in many discussions we’ve had with other agencies, such as local authorities. An important consideration is whether the recording is taking place in a public or private space. Read our AskUs answer to the question, 'Can I record someone without telling them?'

Generally, the Privacy Act says taking photos or recordings in public places is allowed. It also depends on who is taking the photo or making the recording, and whether the photos could be categorised as highly offensive.

Businesses

If you are a business or agency (or if you are taking the photo or making the recording on behalf of a business or agency), you need to consider the general obligations around collection of personal information (see principles 1-4 of the Privacy Act).

Individuals

However, if you are an individual and you’re taking the photo or making the recording in a personal capacity, it won’t usually be an issue under the Privacy Act. The vast majority of passengers will fall into this category, and if they were to make a recording on a flight, it will be in their personal capacity. But there are two things that a passenger should keep in mind.

Firstly, it is always good practice to seek permission when an individual is the subject of your photo or recording. This is also an important courtesy, and respectful of the privacy of others.

Secondly, the use of some public facilities, for instance, parks or swimming pools, will be subject to conditions that may impose limits on what you can film or record. For example, many swimming pools have clearly stated policies that photos and recordings are not permitted. Similar restrictions could apply to a passenger plane.

And it is this second point that is most germane to an airline seeking advice on this issue. While a commercial space like a passenger plane is essentially a public space, the airline may impose rules around whether a passenger can film or record. It can set this out in its passenger terms and conditions and in its passenger education.

However, the personal capacity exemption does not apply where the collection, use or disclose could be considered to be “highly offensive”. This means there are circumstances where it generally isn’t appropriate for individuals to take photos or make recordings, even where they are in a public space.

Emergencies

A recent much discussed example in the news media is the filming or photographing of car crashes. Most people would agree that this would be highly offensive, especially if the images were published online or disclosed to others.

An airline example might be a case of a medical emergency on board a flight. Is it acceptable for other passengers to film and publish online a mid-air medical emergency involving another passenger? We don’t think so. A medical situation would likely involve sensitive information about an individual who is vulnerable, and so this could be considered highly offensive.

There are other types of situations where filming on a flight might or might not be highly offensive. We were also asked about air traffic incidents and we are less convinced that a no-filming rule should apply in a blanket way. What situations would this apply to? Is an air traffic incident one that involves an on-board fire, a near miss or severe turbulence? Would such a rule apply if crew members were trying to control an unruly passenger? This is an area that airlines may wish to consider carefully and to give clear guidance to its air crews.

In our view, an incident that may be embarrassing to an airline does not mean it is highly offensive. The case involving United Airlines and David Dao on a US domestic flight is a famous recent example. Key evidence in this case was video taken by other passengers of Mr Dao being forcibly removed from the flight after he refused to give up his seat.

Individual passengers and air crew may disagree over whether photos or recordings are acceptable. We support informing the parties of their rights under the Privacy Act 1993 to raise a complaint with our office and of efforts by airlines to educate passengers about what is not acceptable. Ultimately, all parties should exercise restraint, consideration and common sense on a flight, as they should in other walks of life. If you wouldn’t want someone to do it to you, don’t do it to others.

Image credit: People on a plane via Pexels

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