Photo and video shooting in public spaces during the war: legal prohibitions and permissions

We live in a world where everyone has a camera at the ready. One click — and your morning coffee, a random passer-by, or an unfamiliar face nearby appear in your social media feed. Pictures from charity events, videos from places of tragedies, life hacks, selfies, stories — all this has become a part of everyday life. Even during war, we continue to document life, record reality, share it with others. But in the shadow of this continuous flow of images, important questions remain: what can be filmed and what cannot? Does a person have the right to be taken without consent and what does the law say about all this?

Lawyers of the “Repeshko and Partners” Bar Association commented specifically for IA “FACT” on the legal limits of photography – what is allowed during wartime, where the line of privacy crosses and when a photo may become a violation of the law.

In recent years, humanity has been living “for show” – endless photos on Instagram and Facebook about every step of life, endless Tik-Tok videos about life hacks and cooked food. Filming has become a part of our lives, even in wartime. Charitable foundations photograph aid recipients for a report to donors, journalists film the horrors of cities of arrival so that the whole world can see the consequences of war. However, very few people really think about the legality of taking and posting photos or videos of third parties.

Photographing or photographing people: general questions

The question of whether it is possible to photograph or film a person without their consent seems simple at first glance. But in reality, everything depends on the circumstances, the context and — most importantly — on the content of the Civil Code of Ukraine. It is he who regulates when filming is allowed and when it is not. Two articles are key here: 307 and 308. Despite the dry legal style, they directly apply to our daily lives – especially in a world where each of us finds ourselves in someone’s frame every day.

According to Article 307, a person cannot be photographed, videoed or broadcast without his permission. But there is an exception to this rule: if the filming takes place openly during a public event — for example, on the street, during a rally, conference or other event accessible to the general public. In this case, the consent is considered to be given automatically.

In other words: if you take a photo of someone in a crowded square during a concert or demonstration, the law presumes that person sees the camera, is aware of the filming, and does not object. But if we are talking about more private situations, or about taking a portrait of a specific person, then consent is indispensable.

The same article allows a person who has agreed to be filmed to demand the cessation of public display of those fragments that relate to his personal life. For example, if a photo or video violates private boundaries, a person has the right to request the removal of this content. But in this case, it is she who must compensate for the costs associated with dismantling or removing the material from public access.

In addition, the article expressly prohibits secret filming without consent, unless it is provided for by a separate law. That is, a hidden camera or recording without warning is illegal in most cases.

At the same time, the norm of Article 308 does not concern the shooting process, but the further use of the image – photo or video. The law clearly says: if a specific person is recognized in the picture, then it is possible to show, publish or distribute this photo only with their consent. There are several exceptions to this:

– if a person posed for the author of the photo for money, then consent to publication is considered given;

– if the person has already died, his close relatives have the right to allow or prohibit the display (as defined in another article of the code);

– in cases where the publication of a photo is necessary for the protection of the person himself or other people, the law allows you to do without permission.

But even if there was consent, it can be revoked — again, either by the person himself or by his relatives after death. However, at the same time, the person who distributed the photo will have to reimburse all expenses incurred.

Note that the law does not require a strict form, it can be written, oral or even silent. Everything is clear with the written one: signed — removed. Verbal consent is also valid, although it will be difficult to prove in the event of a dispute. At the same time, the concept of tacit consent is interesting. It means that if a person sees that he is being filmed, and at the same time does not express objection – either with words or gestures – then it is considered that he agreed. That is, if you film a person in a public place, and he sees it, but does not say anything, you are formally acting within the limits of the law. But as soon as she says “don’t shoot” or makes the appropriate gesture, the shooting should be stopped.

Even representatives of law enforcement agencies, such as the police, SBU, prosecutor’s office, SBU, and others, do not have the right to film without the person’s consent. In most cases, photo or video recording is carried out only in the presence of an appropriate court order and only within the limits of investigative or search actions permitted by law.

As for video surveillance by the police, it is allowed to use recordings from cameras and other technical means of recording, but only if they are installed openly and in a visible place. That is, a person must be able to see that he is under surveillance.

So, what should be noted separately – the filming must be done openly. Covert filming without a person’s consent is allowed only by law enforcement agencies within the framework of NRSD – covert investigative actions, for which a separate permission of the investigating judge is obtained.

According to Art. 32 of the Constitution of Ukraine, no one can be subjected to interference in his personal and family life, except for the cases provided for by the Constitution. It is not allowed to collect, store, use and distribute confidential information about a person without his consent, except in cases specified by law, and only in the interests of national security, economic well-being and human rights.

On a more everyday level, when a betrayed wife wants to take revenge on her husband’s lover and publishes or reposts her photo with some kind of post. We will not touch the post, but as for the photographs, the court has the following point of view. Posting a photo by a person on a social network on the Internet without limiting the number of users who can view this photo is a public display of the photo by this person independently, because the previous distribution (posting) on ​​the social network was public and with the consent of the person who, by his actions, made such information open. Therefore, the use of such photos by other persons is legal, because the previous distribution (posting) in the social network was public and with the consent of the person who, by his actions, made such information open.

If the photos were open only to a certain circle of users, then there was no public distribution of such photos, and therefore their use without the consent of the person is illegal. This conclusion was made by the Supreme Court in the decision of July 19, 2023 in case No. 214/11028/21.

The European Court of Human Affairs (ECtHR) in the decision of February 7, 2012 in the case “Von Hannover v. Germany”, applications No. 40660/08, 60641/08, noted that the image of a person is one of the main attributes of his personality, as it reveals the unique characteristics of a person and distinguishes a person from others. The right to protect one’s image is one of the main components of personal development, which includes, first of all, the right of a person to control the use of this image, in particular, not to allow it to be published. When establishing a balance between the protection of private life and freedom of expression, the ECtHR emphasizes the need to consider:

1. A photo or article contribution to a discussion of general interest. The determination of what is in the public interest will depend on the circumstances of the case. In particular, the Court recognized the existence of such an interest not only in publications related to political issues or crime, but also when it related to sports or famous artists. However, rumors about the marital problems of the president of the republic or the financial difficulties of the famous singer were not recognized as a matter of general interest.
2. How widely known is the person in question and what is the subject of the message. The role or position of the relevant person and the nature of the activity that is the subject of the message and/or photograph is another important criterion related to the previous one. In this regard, it is necessary to distinguish between private persons and persons who act in a public context, such as political or public figures. Therefore, while a private individual who is not known to the public may claim special protection for his private life, this does not apply to public figures.
3. Circumstances under which the photographs were taken. That is, whether the photographed person gave his consent to the photographing and to the publication of the photographs, or whether it was done without notifying him, or by deception, or by other illegal means. It is also necessary to pay attention to the nature and seriousness of the interference and the consequences for the person concerned of the publication of the photograph. For a private individual, unknown to the public, the release of a photograph may be more intrusive than a printed article.

Photo and video shooting of children

Of course, nothing brings so many positive emotions as photos of children and cats. But here it is necessary to remember the following – Ukrainian legislation does not contain special norms that would regulate the issue of shooting and using photos of children. An individual’s right to freely collect, store, use, and disseminate information orally, in writing, or in any other manner of his choice is limited by the right of every other individual to respect for his privacy.

However, it should always be remembered that the child, due to his age and mental abilities, cannot understand the meaning of his actions and the probable consequences of spreading his own image, so persons who have the desire, for example, to photograph a child and use the image in the future. In the case of filming a child, it is absolutely necessary to obtain the consent of his parents or guardians. At the same time, it is necessary to remember the need to immediately obtain double consent: separately for filming and separately for distributing photos or videos.

The practice of the European Court of Human Rights shows that the publication of blurred images of children, on which their faces are not visible, is not a violation of the right to respect for private life (the decision in the case of Kahn vs. Germany dated 17.03.2016), because under the circumstances of the case, it was possible to identify the children only due to the presence of the parents and the accompanying text.

Article 10 of the Law of Ukraine “On the Protection of Childhood” prohibits the disclosure or publication of any information about a child, if the publication of this data may harm the minor. It should also be noted that according to Ukrainian legislation and in accordance with the Convention on the Rights of the Child, a child is every human being until he reaches the age of 18. And therefore, even before posting photos of teenagers, think about consent and consequences.

Photo and video shooting during martial law

Martial law in Ukraine does not mean a complete ban on photography or videography, but it has radically changed the rules. In times of war, filming is not only a creative or documentary process, but also a matter of security, secrecy and responsibility. At the same time, there is a whole series of norms that clearly define: what, who, where and when you can or cannot shoot.

The Law of Ukraine “On State Secrets” expressly prohibits photography and video recording of everything that may be related to defense: military units, equipment, its movements, military locations, air defense facilities, intelligence operations, resistance movements, combat readiness, control points. These are not abstract formulations – in Article 8 of this law, the list is very specific. It is forbidden to shoot even those geodetic or cartographic data that can help the enemy navigate the terrain.

These restrictions have not been lifted even in public space. If you filmed, for example, the movement of Ukrainian equipment or the launch point of an air defense missile – even by accident – and put it on the network, the responsibility is already not only on the enemy who will use it, but also on you. Because it was you who disclosed information that is protected by law.

With the beginning of the full-scale invasion, significant additions were made to the criminal legislation of Ukraine. In particular, Article 114-2 of the Criminal Code of Ukraine appeared. It establishes responsibility for unauthorized dissemination of information about:

– relocation or placement of the Armed Forces of Ukraine;

– receipt and movement of international military aid;

– actions of other Ukrainian military formations.

In most such cases, an expert examination is conducted — experts determine whether the location, route, or nature of military activity can be established from the image. If so, even a short video on social media can be evidence of guilt.

On March 3, 2022, the Order of the Commander-in-Chief of the Armed Forces No. 73 approved a new filming procedure for media representatives, bloggers, opinion leaders, and volunteers. According to it, it is allowed to record military personnel, equipment, fortifications and even trenches only with the presence of accreditation. It is a control tool: the military command knows exactly what, when and where you shoot. Without accreditation, any filming in a combat zone, near military facilities or near checkpoints can be considered a potential security threat.

There is an unspoken but strict rule at or near checkpoints: put away the camera. A camera or smartphone in hand can trigger detention, questioning, or at least a thorough inspection of the phone’s contents. And no, it’s not “exceeding authority”. A military or police officer has the right to check your pictures for prohibited footage – objects that could be used by the enemy. If they are, you will be prompted to delete the file immediately.

According to Cabinet Resolution No. 1147 of 1998, photo and video recording on the border lane is allowed only after informing the border guards. It does not necessarily have to be an official letter — it is enough to inform representatives of the State Border Service about your intentions. In addition, there is a ban on the use of airspace over strategic facilities, such as nuclear power plants, hydroelectric power stations, dams, critical infrastructure facilities, nature reserves, and enterprises with increased environmental risk. That is, a drone launched without permission is not just a violation of the rules, but a potential threat for which a case can be opened.

In this case, the situation is different when filming officials or law enforcement officers. According to Article 32 of the Constitution of Ukraine, as well as the position of the Constitutional Court, a citizen has the right to film representatives of state authorities or local self-government, but only when this filming is aimed at recording human rights violations. For example, if an official demands a bribe or a police officer exceeds his authority, the video can be evidence in a case, attached to an appeal or a lawsuit.

However, it is not worth publishing such a video in social networks without preliminary processing (washing out faces, hiding personal data). Because then it is no longer gathering evidence, but public dissemination, and here there is a risk of violating the right to privacy of another person.

Regarding the publication of photos from the scene of hostilities or air raids, international humanitarian law also comes into play here, which applies not only to the prohibition of torturing or destroying hospitals. It also includes respect for the dead. The Geneva Conventions oblige states to:

• to ensure dignified treatment of the bodies of the dead;
• search and identify them;
• provide information to families before it becomes public;
• to hide with respect for religious and cultural traditions;
• to prevent insults, looting and the use of bodies for public purposes.

Consequences of illegal photo and video shooting

As for the consequences of the illegal actions of the persons who carried out the distribution of photos and video materials, it is possible to bring them to civil, administrative or criminal liability.

Civil liability is compensation to a person for material losses, as he received as a result of illegal actions (lost his job – earnings, was forced to change his lifestyle – compensation for moving, changing housing, etc.). This item also includes compensation for moral damage.

Administrative responsibility is stipulated by Article 188-39 of the Code of Ukraine on Administrative Offenses, because the image of a person is his personal data. Non-observance of the personal data protection procedure established by the legislation on the protection of personal data, which led to illegal access to them or violation of the rights of the subject of personal data, entails the imposition of a fine on citizens from one hundred to five hundred non-taxable minimum incomes of citizens (1,700 – 8,500 UAH) and on officials, citizens – subjects of business activity – from three hundred to one thousand non-taxable minimum incomes of citizens (5,100- 17,000 UAH). A repeated violation of this article within a year, for which a person has already been subject to an administrative penalty, entails the imposition of a fine of one thousand to two thousand non-taxable minimum incomes of citizens (17,000-34,000 UAH).

At the same time, criminal responsibility is provided for by Article 182 of the Criminal Code of Ukraine, which directly regulates situations when someone interferes in the personal space of another person without permission. It is not only about the publication of private information, but also about the very fact of its illegal collection, storage, use, alteration or destruction. If these actions are committed without the person’s consent — or are not provided for by other provisions of the law — they entail criminal liability.

The law considers such actions as encroachment on a protected part of a person’s life – his personal relationships, connections, everyday life, health, as well as confidential information that a person does not share publicly. Such data may include, in particular, a residential address, private correspondence, family photos, video from a surveillance camera in the entrance, a recording of a telephone conversation or, for example, a medical certificate. The punishment for such actions is a fine from 8,500 to 17,000 hryvnias (from 500 to 1,000 of the tax-free minimum income of citizens) or correctional labor for up to two years, or probation supervision for up to three years, or restriction of freedom for the same period.

If such actions are repeated or have caused significant harm — for example, as a result of the illegal distribution of personal information, a person has suffered financial losses, been fired from a job, or lost access to services — then the punishment is more severe. In such a case, the court may order restriction of liberty or deprivation of liberty for a period of three to five years. At the same time, the law defines that substantial damage is considered to be that which, in particular, resulted in material losses one hundred or more times greater than the tax-free minimum income of citizens, i.e. exceeds 1,700 hryvnias. These can be direct medical expenses, attorney’s fees, damages incurred due to loss of business, real estate or property due to the dissemination of private information.

However, the law does not require criminal prosecution in cases where a person reports through the media, public organizations or journalists about the commission of a crime – provided that such reports are made in accordance with the requirements of the law. For example, if a person disclosed data about corruption of an official or about violence, and this was submitted as part of the protection of the public interest, criminal liability does not arise.

We often get asked: Who has the right to review your photos and videos? We answer: representatives of the Armed Forces of Ukraine, the National Police, the Security Service, the National Guard, the State Border, Migration, and Customs Services are authorized to do so. At the same time, in case of doubts about the content of pictures or videos, they can check your devices to make sure that there are no prohibited materials.

So, as we can see, the law tries to maintain a balance: on the one hand, to guarantee everyone the right to personal integrity, on the other hand, not to prevent the disclosure of socially important information. But when it is not about exposure, but about the publication of someone else’s photos, videos or personal data without consent, even with, at first glance, “harmless” intentions, this can have criminal consequences. Because the main criterion of legality in this case is not the intention of the person who disseminates the information, but the right of the person to whom it concerns to decide — whether he agrees to it. In the case of fixing state or military objects, be sure to check whether this is not prohibited by law. In situations of doubt, it is better to refrain from publication in order to avoid liability.