With live streaming at scenic spots becoming increasingly common, it's not uncommon for tourists to be filmed without their knowledge and then commented on by the streamers and other viewers. What are the boundaries of live streaming in the cultural and tourism sector? How can tourists protect their rights when they are violated?

Amidst mountains and rivers, beside ancient buildings, and inside modern skyscrapers—a mobile phone and a live streamer are becoming the "standard equipment" for more and more scenic spots. The camera captures the scenery, but also the tourists coming and going within it. Some people pose for photos at designated spots, only to find themselves in the background of a live stream next door when they turn around; others are deliberately pushed closer to the camera by the streamer, only to be criticized by netizens in the live chat.

"It feels like living in a real-life version of 'The Truman Show,' constantly being filmed while traveling." Similar complaints are ubiquitous on social media. Some argue that with live streaming at scenic spots becoming increasingly common, it's difficult to completely avoid tourists appearing on camera. If tourists are "involuntarily" filmed while visiting a scenic spot and are then subjected to arbitrary comments from live streamers and netizens, how should they protect their rights? A reporter from the Workers' Daily conducted an interview on this issue.

Live streams that are "unavoidable" and "unclosable"

Tourist Duan Jiaxuan recalled his previous travel experience and was still very angry.

That day, while strolling through a scenic area, she noticed several mobile phones blatantly set up on a path frequented by tourists, all broadcasting live. After walking down the mountain path, she had unwittingly stumbled into more than ten live streams. She approached one of the streamers and asked them not to include passersby in the footage. Without even looking up, the streamer retorted, "With so many people coming and going, I can't even see your face clearly."

After failing to reach an agreement, Duan Jiaxuan reported the livestreaming room on social media, but has yet to receive any response.

Tourist Dong Qing's experience made her even more uncomfortable. During her trip, she booked a hotel with a swimming pool. After checking in, she casually scrolled through social media and stumbled upon a live stream from the hotel. The live stream used terms like "perks" to attract attention, while the comments section openly criticized the figures of the tourists on camera. "Move the camera down a little," "Change the streamer," and similar messages kept scrolling by. Standing by the pool, she felt like she wasn't on vacation, but rather attending an exhibition where she was being stared at.

Dong Qing immediately raised her concerns in the live stream, but the host casually explained, "The so-called 'benefits' are just discounts for orders, nothing more." "This is clearly skirting the rules," Dong Qing protested to the hotel reception, but the staff replied matter-of-factly, "Live streaming in public areas is normal; the public swimming pool isn't a private hot spring bath." And the live stream didn't end that day.

However, not all tourists are opposed to this type of live-streaming at scenic spots. "Sometimes I even wave to the camera; it's part of documenting my trip," Shi Shuangbing, a travel enthusiast, told reporters. Sometimes, she even proactively searches social media for posts from other tourists who visited the same scenic spot that day to see if she's been filmed.

Where are the legal boundaries for live streaming in scenic areas?

During the interview, the reporter entered the online live stream rooms of several scenic spots and left comments in the bullet screen asking questions such as, "Is the footage a live stream?" and "Was the consent of the tourists appearing on camera obtained?" Most of the live stream rooms did not respond, while a few simply blocked the reporter's account.

Xie Xu, a partner at Zhejiang Zhesheng Law Firm, told a reporter from Workers' Daily that live streaming at tourist sites may infringe on tourists' portrait rights, reputation rights, privacy rights, as well as their right to personal dignity and peaceful life.

“Public places are not ‘zones without portrait rights protection’,” Xie Xu explained. As long as an image can identify a specific natural person and is used for promotional purposes without permission, it meets the elements of portrait rights infringement. The determination of related liability is not solely based on profit. Furthermore, publishing comments that are sarcastic, defamatory, or insulting also constitutes infringement. “Tourists’ travel is essentially a private activity, and they naturally have the right to be undisturbed in public.”

Duan Jiaxuan deeply understands this. "Pointing the camera at me during a live stream is a disturbance in itself, and I can no longer enjoy the scenery in peace." She showed the reporter several accounts of a scenic spot on a social media platform. Some tourists not only appeared in the live stream and were "judged" by netizens and the streamer, but were also edited into short videos, continuously driving traffic to the scenic spot in cyberspace.

Regarding the unexpected inclusion of tourists in his videos, photographer Aso expressed some confusion, saying, "Sometimes there are many people in the shooting scene; it's impossible to ask for everyone's consent, right?" He stated that it's difficult to avoid capturing tourists in his usual works and live streams. After several videos were reported and taken down, Aso felt somewhat lost.

How should we define whether a tourist attraction's posting of photos of visitors on online platforms constitutes fair use or infringement? In a case reported by the Qingyuan Intermediate People's Court in Guangdong Province, a woman surnamed Xu was photographed swimming in a company's pool while wearing a swimsuit. Over the next three years, the company used this photo six times in commercial promotions on its official WeChat account. The court held that Xu was recognizable to acquaintances, and the defendant's unauthorized use of her image for profit constituted infringement. Ultimately, the court ordered the company to issue a written apology and pay damages of 10,000 yuan and notarization fees of 1,300 yuan.

According to Qu Lingmin, director of the Private Law Research Center at Ocean University of China, the prerequisite for asserting portrait rights is identifiability, meaning that an average person must be able to associate the image with a specific individual. If the person in the image is so blurry that no one can recognize them, it is difficult to assert rights. "Even if scenic spots use images within a reasonable scope, and tourists only flash by as background, such images can only be used for non-commercial purposes such as showcasing the environment. Once commercial promotion is involved, the consent of the person whose image rights are being used must be obtained."

Multiple measures to strengthen the supervision of live streaming in scenic areas

How to protect your rights when encountering "involuntary camera exposure"? Qu Lingmin suggests that tourists should quickly pass by if they discover others livestreaming or filming while visiting scenic spots to avoid prolonged exposure to their cameras. "Once you discover someone filming you without your consent, you should immediately take a screenshot or record the video as evidence and approach them to demand the deletion of the video. If they refuse to delete it, you can file a complaint with the scenic spot or the livestreaming platform, or report it to the police. If the issue is discovered later, you can also file a lawsuit for infringement in court."

Reporters noted that relevant national departments have issued several regulations to standardize online live streaming. The Cyberspace Administration of China and seven other departments jointly issued the "Guiding Opinions on Strengthening the Standardized Management of Online Live Streaming," and the State Administration of Radio and Television and the Ministry of Culture and Tourism jointly issued the "Code of Conduct for Online Live Streamers." Furthermore, many online platforms are continuously improving their live streaming rules and focusing on addressing copyright infringement issues in live streaming.

Qu Lingmin believes that scenic area management units should fulfill their safety obligations, strengthen the management of live-streaming activities within the scenic area, and remind and remind live-streamers and tourists through scenic area announcements and broadcasts. They should also intervene promptly upon receiving tourist complaints, preserve evidence, and cooperate with the police in handling the matter. "Ultimately," she says, "when tourists choose to visit a scenic area, they are not only buying tickets and scenery, but also a sense of security and undisturbed peace of mind."

Xie Xu further stated that platforms have a responsibility to regulate content and should improve community governance rules, refine provisions for the protection of passersby's portraits, and utilize technologies such as AI to screen potentially illegal content such as secretly filmed images of passersby and clips of tourists being directed to attract customers. They should also establish a fast-track channel for protecting personal rights and take punitive measures such as limiting traffic and banning accounts that repeatedly violate regulations. (Source: Workers' Daily)