It is becoming increasingly difficult to know when we are being recorded. While cameras have become an accepted part of everyday life, from smartphones and ring doorbells to CCTV in shops, cars and public spaces, camera-enabled smart glasses introduce something altogether different. Their ability to record discreetly, without those around the wearer necessarily realising, creates new and increasingly concerning questions about privacy, consent and the potential for abuse. Yet despite this some of the world’s largest technology companies are set to sell millions of these devices to consumers in the years ahead.

Recent reporting by the BBC has highlighted growing concerns about Meta's smart glasses, including instances where women have allegedly been filmed without their knowledge and the footage subsequently shared online. The BBC reported that Meta's glasses accounted for more than 80% of smart/AI glasses sales at the time and that seven million pairs had been sold.

The technology is clearly proving commercially successful, but what happens when technology designed to make recording easier also makes covert recording easier? And what does this mean for those most vulnerable to being sexually abused in this manner?

This is not simply a question about consumer technology or privacy. It is a question about consent, sexual autonomy, voyeurism, safeguarding and responsibility.

And as we see an increase in the use of this technology, perhaps this may also become a question about vicarious liability, as it begs the question what are technology companies and other organisations doing to ensure those at risk of sexual abuse are protected from this risk?

The dangers with a camera you cannot easily see

The BBC has recently reported concerns that the recording light on Meta's glasses can be difficult to see in daylight and that many people may not realise that someone wearing apparently ordinary glasses is capable of recording them.

Meta's own approach is to emphasise responsible use, with guidance telling users not to record people who have said they do not want to be recorded and to turn the glasses off in sensitive environments.

But this places a significant part of the responsibility on the person wearing the glasses, and that is problematic when the person being recorded does not know that recording is taking place in the first place, as a person cannot meaningfully object to a recording they cannot reasonably detect. And that becomes further problematic when the recording taking places is sexual or voyeuristic.

The potential risks are even more concerning when children or vulnerable adults are involved who may be less able to recognise when they are being recorded, understand the implications of covert recording, or identify that apparently ordinary glasses may contain a camera. This creates an obvious safeguarding concern in schools, sports clubs, leisure facilities, care settings and other environments where children / vulnerable adults should be able to feel safe and protected. The possibility that an individual could use discreet recording technology to obtain sexual or otherwise exploitative images of children and vulnerable adults, without their knowledge or consent, is particularly troubling. It also raises wider questions about the responsibilities of organisations entrusted within these types of care and safety settings, including whether existing safeguarding measures and policies are sufficiently equipped to respond to technology which can make inappropriate recording significantly harder to detect.

When covert recording becomes sexual abuse

Covertly recording another person in circumstances of sexual privacy constitutes the criminal offence of voyeurism.

The circumstances could include someone being recorded:

• When indecent;
• using a bathroom or changing facility;
• during sexual activity;
• underneath clothing;
• in a bedroom or other private space; or
• in another situation where they would reasonably expect not to be recorded.

There is also a wider category of conduct where a person may be recorded in public in a sexually intrusive way and the footage is subsequently distributed or monetised.

Once material reaches social media or other online platforms, control can be lost almost immediately.

Psychological impact

A survivor may be left wondering who has seen the footage, where it has gone, whether it still exists and whether it could resurface years later, and that impact of uncertainty can become part of the abuse and significant of this should not be underestimated.

The scale of the problem could be significant

What makes smart glasses particularly important is not necessarily what they can do today, but what happens if they become normalised which is a very realistic prospect in the way in which we are seeing technology trends advance in modern society.

The BBC reported that researchers expect as many as 100 million people could purchase smart glasses over the coming years if products from multiple technology companies achieve widespread adoption.

One of the concerns raised is that smart glasses are fundamentally different from fixed surveillance cameras because they are mobile and carried by individuals through shared public spaces. The concern is not simply about the legality of individual recordings, but about what happens to trust when people begin to assume that they may be filmed at any moment without knowing it.

The issue is not simply, "Is it legal to take a photograph in a public place?", it is: "What happens when the technology makes it possible to secretly capture, process and distribute images of people without them even knowing that it happened?"

Does the existing law provide sufficient protection?

There are already criminal offences capable of addressing certain forms of voyeuristic behaviour and the creation or distribution of intimate images without consent. But the advancement of technological changes does not always fit neatly into existing legal categories.

Vicarious liability

Vicarious liability can make an organisation legally responsible for wrongdoing committed by an individual where the necessary relationship between the organisation and the wrongdoer exists and the wrongdoing is sufficiently closely connected with that person's role.

As discussed in previous blogs, courts have had to consider the difficult question of when wrongdoing is sufficiently connected to a person's role that responsibility should extend beyond the individual perpetrator.

Smart glasses could create a new set of circumstances in which that question has to be considered and so it will be interesting to see how the courts in England and Wales deal with this and whether existing principles of vicarious liability are sufficiently flexible to address the ways in which emerging technology can facilitate abuse.

What is Meta’s position?

Meta's position, as reported by the BBC, is that people should behave responsibly with the technology and that the responsibility ultimately rests with individuals not to exploit it. Meta also says it has teams working to limit and combat misuse.

That position raises a broader question: How much responsibility should sit with the individual user, and how much should sit with those who design, manufacture and sell the technology?

What responsibility sits with organisations that place individuals in positions of trust and authority?

It is important to recognise that organisations do have responsibilities around safeguarding, recruitment, supervision, reporting and risk management and the arrival of wearable recording technology.

What should organisations be doing now?

Organisations working with children, vulnerable adults or people in positions of dependency / at most risk to fall victim to this new type of abuse should be asking whether their existing safeguarding policies adequately address wearable technology.

That should include consideration of:

• smart glasses and other wearable cameras;
• mobile phones and covert recording;
• photography in private or sensitive environments;
• intimate-image abuse;
• sexual harassment and voyeurism;
• use of recording devices by staff, volunteers and contractors;
• supervision and safeguarding procedures;
• preservation of digital evidence; and
• what happens when an allegation is made.

What can I do if I have been covertly recorded?

If you have experienced voyeurism, covert sexual recording or another form of sexual abuse, seek legal advise to understand your options. Our specialist team of abuse lawyers are here to help you. Contact Hannah Hodgson at Hannah.hodgson@switalskis.com and Danielle Vincent at Danielle.vincent@switalskis.com today for a free, non-obligatory and confidential chat.  

At Switalskis, we understand that these cases are rarely straightforward. The technology may be complicated, but the starting point should always be the same: understanding what happened, the impact it has had, and who may ultimately be responsible.