When WITNESS talks about the “Right to Record,” we are referring to the right to take out a camera or cell phone and film the military and law enforcement without fear of arrest, violence, or other retaliation. [1] Although the Right to Record is foundational to the use of video for human rights and is upheld by law or judicial decisions in some countries, other countries’ laws and practices explicitly violate this right. When human rights defenders and ordinary people documenting wrong-doing have to hide their cameras or record in secret, their work becomes difficult, or even impossible. And for many people, exercising their contemporary right to free expression regularly involves taking out their camera or cellphone and filming. From the use of video as evidence to show violations of human rights by military and police in the favela of Maré in Rio to killings by Customs and Border Patrol in the United States,  the Right to Record is essential. Without it, citizen journalists have to work at great risk and film secretly, as is the case with efforts to fight misinformation about the Rohingya in Myanmar. As a recent resolution from the United Nations Human Rights Council makes clear, this right is protected under international human rights law.

How does the United Nations talk about the Right to Record?

The United Nations Human Rights Council promoted this right explicitly last month in resolution A/HRC/38/L.16, on “The promotion and protection of human rights in the context of peaceful protests.” The resolution, submitted by Costa Rica and Switzerland, also contained other important language supporting the rights of witnesses and human rights defenders.

This isn’t the first time the United Nations has recognized the Right to Record, but this resolution strengthens the understanding that the right is protected and should be respected. A 2015 report on “ The use of information and communications technologies to secure the right to life” from Christof Heynes, former Special Rapporteur on extrajudicial, summary or arbitrary executions, directs States to respect and protect the “the individual’s right to make a recording of a public event, including the conduct of law enforcement officials.” In a 2016 joint report, Heynes was joined by Maina Kiai, former Special Rapporteur on the rights to freedom of peaceful assembly and of association in a report on the proper management of assemblies to expand on this:

All persons enjoy the right to observe, and by extension monitor, assemblies. This right is derived from the right to seek and receive information, which is protected under article 19 (2) of the International Covenant on Civil and Political Rights. The concept of monitoring encapsulates not only the act of observing an assembly, but also the active collection, verification and immediate use of information to address human rights problems.

The report also noted that this explicitly includes the Right to Record law enforcement, and that “Confiscation, seizure and/or destruction of notes and visual or audio recording equipment without due process should be prohibited and punished.”

The resolution

Switzerland introduced this resolution at the Human Rights Council’s July 6 meeting by noting,“The increasing number of public protests perhaps reflects a global crisis in representative democracy and a quest for new forms of political participation,” and that “whatever the reasons that drive people into the streets, everything must be done to ensure that human rights are protected during peaceful protests.”

We agree. Now more than ever, participation in protests must be protected– although the Right to Record should not be limited to these times. As we’ve noted, in a world with rapidly shrinking space for civil society, the ability to take out a camera or phone and record, to counter official misinformation, and to preserve evidence in the hope that justice will be served in the future, is particularly important.

The resolution outlined many ways in which states should protect participation in peaceful protests. The resolutions explicitly mentions the right to record in four separate places as follows:

The Human Rights Council:

  • Recall[s] the rights to freedom of peaceful assembly and of association, which encompass organizing, participating, observing, monitoring and recording assemblies,
  • Express[es] its concern at the criminalization, in all parts of the world, of individuals and groups solely for having organized, taken part in or observed, monitored or recorded peaceful protests, …
  • Calls upon all States to pay particular attention to the safety of journalists and media workers observing, monitoring and recording peaceful protests, taking into account their specific role, exposure and vulnerability, …
  • Underlines the necessity to address the management of assemblies, including peaceful protests, so as to contribute to their peaceful conduct, and to prevent injuries, including those that lead to disability, and loss of life of protestors, those observing, monitoring and recording such assemblies, bystanders, and officials exercising law enforcement duties, as well as any human rights violation or abuse, to ensure accountability for such violations and abuses and to provide victims with access to a remedy and redress.

The resolution also makes it clear that the Right to Record is not limited to journalists and media workers, noting that Internet users and human rights defenders have an important role to play in documenting human rights violations.

In addition to addressing the Right to Record, the resolution contained other key provisions. It notes the increasing tendency of governments to block all or part of the Internet, especially at “key political moments,” and calls upon states to #KeepItOn– ie maintain access to the Internet as the #KeepItOn coalition has been calling for. This provision also supports the Right to Record, as the ability to share video and, in particular, to livestream or narrate events as they happen is intimately linked to the Right to Record.

The resolution also notes the need to be able to use ICT (Information and Communications Technologies) securely and privately. Importantly, it points out that “although an assembly has generally been understood as a physical gathering of people, human rights protections . . . may apply to analogous interactions taking place online.”

As WITNESS and our partners have been saying, irresponsible content moderation by social media platforms can all too easily silence the voices of human rights defenders and denigrate freedom of expression. As work like the recent report on content regulation from the Special Rapporteur on Freedom of Expression continues, we hope to see the UN expand on this important assertion.

What’s next for the Right to Record?

In some countries the Right to Record is explicitly recognized, and it’s important to ensure that this doesn’t change- and that the right is actually respected by law enforcement. For example, in the United States all the Federal Courts of Appeal that have decided this issue have determined that under the First Amendment to the Constitution, individuals have a right to record law enforcement performing their duties in public. But these rulings haven’t stopped police from seizing cameras, deleting video, and more- especially when they are being recorded by a person of color. In South Africa, the Constitution should protect the Right to Record, and Standing Order 156 of the South African Police Service directs police to respect the right of media to film, “but it’s vague on who qualifies. [The South African Right to Know Campaign] believes this should include citizen journalists – anyone with a cell phone camera”. In practice, this right is often not respected, even for media representatives.

But there are also many places where recording law enforcement is expressly prohibited, and other places where the law is unclear- including much of the European Union. For example,  in Spain a 2015 “public security” law known as Ley Mordaza (the Gag Law), “restricts the video recording of police with fines of up to 30,000€ imposed on those who disseminate footage.” Since its passage in 2015, Spain has had multiple violent episodes of human rights violations by the police, most notably during the vote for independence for Catalonia, and the law has clearly been used to silence political dissent. And in Palestine, the Israeli parliament is trying to pass a law expressly prohibiting filming of the Israeli Defense Forces…even as videos documenting human rights abuses against Palestinians continue to cause an international outcry over human rights abuses by the IDF.

This resolution cements the importance of the Right to Record under international human rights law at assemblies- but we think more is needed. It needs to be clear that the Right to Record applies to all interactions with law enforcement and the military — in other words, the Right to Record is in force during everyday policing or military activities, not only assemblies. Furthermore, laws that prohibit recording should be struck down in favor of laws that uphold human rights, and countries that try to violate this right should be called to account.

However, activists and civil society should also discuss what the Right to Record really means. Many questions exist, from whether this right includes the right to publish, including on the Internet, to whether the right covers lawmakers or other public figures, to whether it means only the Right to Record with a camera or it extends to other technology like drones. In coming months,  WITNESS will focus on answering these questions, and highlighting both the many violations of this right and cases where the right served to expose human rights violations.

-2 August 2018
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[1]This is not a complete definition of the Right to Record, and we and others have many questions about what the Right to Record encompasses. We hope to explore these in conversation with civil society and activists. Look for more blog posts in coming months!

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