1. Introduction
1.1 Rise of Social Content Creation in Public Spaces
Public spaces have become stages for digital content creation by influencers and YouTubers who seek virality through prank videos and “social experiments.” However, such acts often blur lines between humour and harassment. The idea that any member of the public becomes a participant—without consent or context—is legally and morally troubling. These trends necessitate a closer look at the interface between personal dignity, entertainment, and freedom of expression.
1.2 The Legal and Ethical Dilemma
This article investigates whether such public filming without express consent infringes on privacy rights under Indian law. The analysis is grounded in constitutional law, criminal statutes, tort principles, and comparative frameworks. It seeks to identify whether prank and viral content, particularly when done without consent, amount to legal infringement.
2. Consent: A Right, Not an Assumption
2.1 Legal Recognition of Privacy
The landmark judgment in Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) affirmed the right to privacy as a fundamental right under Article 21. The Court held that privacy encompasses bodily integrity, personal autonomy, and the right to control dissemination of personal data. This constitutional framework clearly applies to the filming and digital distribution of any individual’s likeness without permission.
2.2 Debunking the Myth of Implied Consent
The argument that being in a public space implies consent to be filmed is erroneous. Implied consent may apply in specific settings, such as large public gatherings or news reportage, but prank videos that intentionally deceive or emotionally disturb individuals do not fall into that category. Such content, often monetized and widely circulated, must respect the threshold of informed and voluntary consent.
2.3 International Standards on Consent
Internationally, laws like the GDPR mandate that consent must be freely given, specific, informed, and unambiguous. Although India does not yet have a comparable unified privacy law, these principles are increasingly referenced by courts when addressing digital violations. Filming someone in a potentially humiliating situation without consent would be non-compliant under such standards.
3. When Entertainment Becomes a Crime: Penal Provisions
3.1 Legal Shift Under Bharatiya Nyaya Sanhita, 2023 (BNS)
With the BNS replacing the IPC in July 2024, several sections become relevant to prank content: Voyeurism (Section 74(2), BNS), defamation (Section 356, BNS), public nuisance (Section 285, BNS), and criminal intimidation (Sections 351 & 352, BNS). Each of these offences can be triggered by filming pranks that cause fear, harm reputation, or target vulnerable individuals.
3.2 Real-World Precedent
A Hyderabad prankster was arrested after simulating a bomb threat. He claimed the act was humorous, but the courts rejected this defence. Such incidents show that intent is not sufficient to absolve liability when public safety and personal dignity are compromised.
4. Digital Liability: IT Act and Civil Remedies
4.1 Intermediary Responsibilities under IT Rules, 2021
The Information Technology Rules, 2021, particularly Rule 3(1)(b), place a duty on intermediaries to prevent the circulation of content that is unlawful, defamatory, or invasive of privacy. Platforms may lose their safe harbour under Section 79 of the IT Act if they fail to remove content upon receiving notice.
4.2 Civil Remedies and Tort Law
In R. Rajagopal v. State of Tamil Nadu (1994), the Supreme Court ruled that publishing personal information without consent is a privacy breach. This case laid the foundation for civil remedies such as damages and injunctions in cases of non-consensual content dissemination.
4.3 Indian Tort Law: A Developing Frontier
Although India lacks a formal tort statute, its courts apply English common law to award compensation for invasion of privacy, emotional distress, and loss of reputation. This evolving jurisprudence helps bridge the legislative gap until statutory privacy law is enacted.
5. Platforms and Algorithms: The Silent Participants
5.1 Algorithmic Amplification of Harm
Social media platforms rely on algorithms that prioritize high-engagement content—often including emotionally provocative, humiliating, or ethically questionable videos. This design flaw incentivizes content that crosses ethical and legal lines, including public pranks.
5.2 Regulatory Weaknesses and Gaps
Although the IT Rules require due diligence, current laws do not hold platforms accountable for failing to proactively prevent harmful content. Greater regulatory oversight and real-time moderation capabilities are necessary to address algorithmic harm and platform complicity.
6. Conclusion and Recommendations
6.1 Legal and Social Imperatives
The convergence of law, technology, and personal dignity requires urgent intervention. While content creators seek fame, the law must safeguard individuals’ autonomy and privacy.
6.2 Strengthening the Legal Framework
The Indian legal system must adopt: (i) comprehensive privacy laws; (ii) mandatory consent protocols for filming; (iii) clearer obligations for digital platforms; and (iv) swift redressal mechanisms for victims.
6.3 The Core Principle: Consent is Crucial
Consent must be treated as a non-negotiable right. In a democracy that values dignity, no amount of virality can justify violating someone's fundamental rights.
References
1. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
2. R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632.