Have Privacy and Decency Been Sacrificed at the Altar of Social Media?

There are growing concerns over the scant legal protection offered to those whose privacy is abused by fellow users of social networking sites.

Significant media attention has returned to this issue recently after a set of explicit photos went viral. While many accounts sharing the photos were initially shut down, the events continued to create a web sensation with some forums revealing the identity of the person in the photos.

Cases such as this give the appearance of a legislative gap that leaves personal privacy and decency exposed entirely to the whims of irresponsible social media users and cyber bullies.

Protection Under the Current Law

Given recent events, it may be a mistake to presume social media activity can be sufficiently regulated by existing legislation.

The first principle of the Data Protection Act 1998 requires personal data to be used fairly and lawfully, meaning in a manner that does not cause unjustified adverse effects to individuals. Moreover, Article 8(1) of the European Convention for Human Rights establishes a right to respect an individual’s private life. Despite this, English case law suggests there is little legal certainty regarding third party privacy and the actions taken by social media platforms and their users.

There has been some attempt to create a degree of legal certainty at the European level with the EU’s General Data Protection Regulations in the final stage of negotiations. However, the new regulations if passed would only have a modest impact. While they would permit the removal of embarrassing online pictures; where these images have spread to a third party, control over removal is limited. Moreover, if the material posted is of a personal not commercial nature, the regulation has little effect.

Unfortunately, the most damaging content is often shared by other personal users so it is social media sites’ own policies that end up being relied upon. It is notable that the likes of Twitter and Facebook were quick to condemn the incident highlighted above.

Social Media Privacy Challenges

The gap in legislation is partly caused by the need to strike a balance between ‘freedom of expression’ and the ‘right to private life’. Past cases such as the “Twitter joke trial” show how the law can unjustly impede freedom of expression. This also needs to be considered by policy makers and is trickier than it sounds.

Indeed, although guidelines from the Director of Public Prosecution, issued earlier this year, were designed to help users of social media platforms operate within the law, they do not provide much clarification to cases where content is ‘grossly offensive’. Although the guidelines note that a ‘high threshold’ needs to be passed for content to be deemed offensive, there is a thin line between ‘offensive’ and ‘merely distasteful’.

The greatest problem remains the speed at which inappropriate content can be shared on the internet and there is little that existing or new legislation is likely to be able to do about that.

Comment

It is clear that individuals face a tough time protecting their privacy online in the current legislative environment. Perhaps it is finally time to stop shoehorning new practices to fit existing legal theory and take a fresh legislative approach but only policymakers can take this forward. In the meantime, individuals will just have to remain vigilant and businesses should be cautious regarding personal information and social media. For more information contact Peter Gourri today by email PGourri@rollingsons.co.uk or telephone 0207 611 4848.