In the latest Batman movie, Bruce Wayne’s corporate right hand man, Lucius Fox, copes stoically with the death and destruction dogging his boss. Interestingly, the last straw for him is Bruce’s request that he use digital video surveillance created through the city’s cellphone network to spy on the people of Gotham City in order to locate the Joker. Does this tell us something about the increasing social importance of privacy, particularly in an age where digital video technology is ubiquitous and largely unregulated?

While much digital privacy law and commentary has focused on text files containing personal data, little attention has been paid to privacy interests in video files that may portray individuals in an unflattering or embarrassing light. As digital video technology is now becoming widespread in the hands of the public, this focus needs to shift. Once a small percentage of online content, digital video images are now appearing online at an exponential rate. This is largely due to the growth of online video sharing services such as YouTube, MySpace, Flickr, and Facebook. The sharing of images online is now a global phenomenon – as is the lack of explicit legal protection for privacy rights in these images.

This article examines the extent to which we do, or should, have privacy rights in digital video content. It then considers the most effective approach for regulating online video privacy. It suggests that pure legal regulation, without more, is unlikely to be up to the task. Instead, a combination of regulatory modalities will be required to effectively protect privacy interests in digital video files. These modalities will likely include the four regulatory modalities previously identified by Professor Lawrence Lessig: legal rules, social norms, system architecture, and market forces. Additionally, new regulatory modalities may need to be developed. These might include public education and non-profit institutions recognized in a regulatory role.

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