Pranksters beware, your jokes can land you in legal trouble

There is a recent trend of hidden camera prank videos that are posted online as social experiments to elicit humour. Whereas this was previously the province of foreign TV productions such as the 'Just For Laughs Gags', local TV has also taken the cue. This has also spread to social media personalities who also have pranks posted on their handles.

Humour is a tool of social cohesion and human interaction though it is also a fluid social construct that is subjective rather than objective. This is why some people critique some pranks as being annoying whilst others find them hilarious.

Pranks would generally fall under creative artistic expressions, especially where thought is put to setting up of the prank. However, to the extent that some of the pranks may be offensive to those who participate in them, it is important that the scope and limitations of this freedom of expression is clearly defined so as not to infringe on any rights of those who participate in the pranks.

Most of the pranks take place in public and the participants’ right to privacy may be affected when a camera is set up and microphones thrust into their faces.

Whereas some pranks may be relatively innocuous and only cause embarrassment to the participants, some go over the top and may be destructive to people or property or cause apprehension on the part of those who are filmed as unwilling participants.

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One prank that was recently aired on YouTube showed a man acting as a doctor and whipping other actors pretending to be patients whilst the social experiment showed participants who were asked to hold a blood transfusion bag or an intra-venous drip. Participants prone to panic attacks may easily develop complications when placed in such situations.

In the UK, a TikTok prankster called Mizzy was jailed for 18 weeks for entering a stranger’s house uninvited in a prank which constituted trespassing into private property.

In Nigeria, popular prankster Trinity Guy was sent to prison over an allegation of sexualising a minor in his viral skit video.

These examples point towards the need for pranksters and their media organisations to ensure they meet the bare minimum expected of them in compliance with the law to ensure they entertain without infringing on people’s rights.

Consent of the participants is a prerequisite before publishing of any such content. Most pranksters do not seek consent before filming as this would take away the element of surprise and shock that is the fodder of the prank. Viewers enjoy to see the raw reactions of the participants when confronted with those situations created for the prank. Most of the times, pranksters notify the participants that it was just a prank once they have achieved that reaction. 

It is expected that once this has been done, consent release forms will then be signed to protect the prankster in case of the publication of the content. What is often shown on Kenyan TV skits are the participants merely waving at the camera whilst laughing off the prank in a show of relief.

Several questions can be posed. First, can consent be implied by the waving and taking the joke in good spirits or with a shrug? Second, would the suggestion that consent be written be an unnecessary intrusion of the legalese in matters that are not that serious?

Pranksters are better off ring-fencing themselves from any action by having this consent. In our highly litigious society, it is not improbable that those who are unwitting and unwilling participants in the pranks may press various charges including civil claims such as infringement of image rights. Further, just like the cited examples from the UK and Nigeria, criminal sanctions are also probable.

Some pranks that target a protected class of persons such as religion, pregnancy, sex or age will also border on discrimination or hate crime. Others that have sexualised content can also attract sexual harassment claims.

Whereas there is no record of Kenyan cases on such matters, it is expected that the threshold of mounting a viable legal claim on account of an injurious prank or a prank gone wrong may be too high. There may be a requirement of actual harm (physical or emotional) or loss to mount a viable claim. It is also expected that mere humiliation, ridicule and embarrassment may not be recognised legal claims for compensation for “pain and suffering”. If loss is proven, there would be remedy for the same.

Mr Murunga is a legal practitioner