Sousveillance, or the recording of an activity from the perspective of
participants in that activity, clearly brings positive outcomes insofar as it
challenges the one-sided nature of surveillance. As sousveillant technologies
become more ubiquitous, we are likely to see increasing legal developments to
meet with the challenges and opportunities that they bring. I propose
that there are three main areas of interplay between law and sousveillance,
which will be discussed in detail. First, the law relating to privacy or
‘misuse of private information’ might form the basis of challenges to
sousveillance. The courts (and in the first instance, the sousveiller) will
have to ask: is this information to which a ‘reasonable expectation of privacy’
will attach, and if so, is that outweighed by the sousveiller’s right to
freedom of expression? Second, the use of wearable technologies in, for
example, cinemas, might give rise to challenges under copyright law. Third, there
is a risk that suspicion surrounding sousveillant technologies will give rise
to attempts to restrict them, in what Mann dubs ‘McVeillance’, or
‘surveillance, combined with a prohibition on sousveillance’. It is posited
that human rights law, and the right to freedom of expression in particular,
can be used to shield sousveillance from unjust interference.
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