Prying and Privacy: When Internet Posts Go Too Far

14th April 2020 Media Law

Most of us with a social media account will have seen them. Across every internet platform you can imagine, there are countless video clips either revealing individuals up to no good, experiencing an embarrassing mishap or being recorded simply going about their everyday lives. Quite often, the footage is captured without the victim's knowledge.

These posts are intended to amuse, and to gain “shares” and “likes”. We may even have laughed at them ourselves. Yet how many of us will have put ourselves in the position of those featured?

My mind was drawn to the topic by a series of clips posted and shared across various social media outlets within the last few week. Following the government’s lockdown announcement, we are spending far more time at home, but also observing those living around us. It seems that even more people are turning to social media to document their lives, and the lives of others, during this strange and unsettling time.

In one clip, a smartphone camera was trained through the windows of a London apartment as its operator provided her thoughts about what her neighbour was up to whilst in their home. The individual was not only visible, but clearly identifiable.

It reinforced the point that recording and circulating such material is not without the potential for legal consequences. Myself and my colleagues at JMW are regularly approached with complaints about behaviour such as this, which quite often ignores the legal rights of those being recorded in more ways than one.

Privacy

Since the introduction of the Human Rights Act 1998, an individual’s right to post content to the world is known as their right to freedom of expression.

That right must be carefully balanced against the right of the individual who is the subject of the post to respect for his or her private and family life.

Ultimately, if the individual has a reasonable expectation that the content is private and it is not in the public interest for it to be published, then the content risks infringing privacy rights and the courts might penalise the publication.

Data protection

Similarly, by recording identifiable individuals and uploading to the internet, would-be posters are processing personal data and must have a lawful reason to do so. The personal data may be classed as “special category” if it reveals racial or ethnic origin; health or disability; political opinion; or if it concerns a person’s sex life or sexual orientation etc. This means that the data is protected by even more stringent requirements in the absence of explicit consent for processing.

Journalists can rely on an exemption to data protection law if they reasonably believe that the publication of the material would be in the public interest. Whilst such posts are often of interest to the public, are they actually in the public interest? A difference of opinion would need to be examined on a case by case basis.

A further point to note: those who only use personal data for such things as writing to friends and family or taking pictures for their own domestic enjoyment, are not subject to the GDPR. This is unlikely to be the case when the personal data is being published to the world at large on the internet.

Harassment

Posts on the internet or social media, which are targeted at an individual, can amount to harassment if the content causes alarm or distress to that person. There must have been a clear course of conduct - that is, two or more related occurrences. The conduct must be “oppressive” and “unreasonable” rather than merely irritating. It may be committed against a group of individuals i.e. a workforce or entire families.

In current times, there is much to be thankful for in terms of the ease of contacting our family and friends via internet platforms and apps. However, the relative ease of making contact and uploading content to internet platforms in this way can also create a significant issue when it is used maliciously. Trolling and cyber-bullying are topics which have featured heavily in recent discussions about internet safety. It is important to know when online content oversteps the mark.

Defamation

Content which makes the average reader or viewer think less of a person, and which is published to at least one other individual, may be defamatory where that content causes serious harm to a person’s reputation.

Again, public interest is a relevant consideration as this is one defence which can apply, along with “truth”, “honest opinion” and “privilege”. However, strict legal rules, which outline the principles of what used to be known as “responsible journalism”, apply to the use of the public interest defence. This is key given the recent huge increase in blogs, websites and other online content which is authored and generated by so-called “citizen journalists” – often without the training and experience of professional journalists. A recent court decision has confirmed that those people will be held to the same standards as professional journalists.

Crime

Again, depending on the nature of the content, offensive posts on the internet can sometimes amount to a criminal offence. Harassment is a criminal offence. Single posts may also fall foul of the Malicious Communications Act 1988, or, depending on the content obviously, may be classed as “revenge porn” – a relatively new criminal offence.

YouTube star, Chrissy Chambers, recently won a four-year legal battle against an ex who shared videos of the couple having sex online. In an interview with the BBC, she talked of the lack of willingness to take action by internet platforms, stating:

If websites actually responded, that would be great. When I reached out in the past I got no response. It wasn't until we sent a letter from a lawyer that some of the videos started to come down.”

Social media regulation?

Last year, the Government conducted a three-month consultation culminating in the ‘Online Harms; White Paper which, it said, aimed to create a "world-leading package of measures to keep UK users safe online". It recommended making internet companies responsible for harmful or illegal user-generated content appearing on their platforms.

In February this year, Digital Secretary Nicky Morgan and Home Secretary Priti Patel gave their initial response to the feedback which they had received, announcing that they were "minded" to appoint the communications watchdog, Ofcom, to enforce the new rules as and they're introduced. The personal data watchdog, the ICO, said that the Government’s response to the consultation “is an important step forward in addressing people’s growing mistrust of social media and online services”.

Among those organisations affected would be platforms hosting various types of content, including videos, photographs and “comment”, such as Facebook, Snapchat, Twitter, YouTube, Instagram and TikTok.

What can be done?

Under existing law and regulation, as well as consulting specialist lawyers, those who are on the receiving end of social media abuse or embarrassment can speak to the police (if the content is criminal in nature). They can also report the matter to the social media platform which “hosts” the offending content, if the content breaches the terms and conditions of the platform itself. However, as we have seen previously, internet platforms can be slow to act, as can the police who are often under-resourced to deal with such issues. This will often leave people without any recourse, except to consult a solicitor.

Social media posts can be fun and entertaining. However, when they affect other people, different factors come into play. Anyone tempted to tell the world about the lives of others on the internet should pause for thought before they post.

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Laura Wilkinson is an Associate located in Manchesterin our Commercial LitigationMedia Law departments

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