In a previous two part series last year, we discussed the valuable nature that social media can provide in terms of stories, photographs and information.
However, caution should always been taken when using material that is taken from social media, as there are a number of legal issues that should be considered, especially (1) copyright, (2) privacy and (3) data protection. This article is intended to provide a useful reminder of legal issues to consider and also a recent, welcome, update on a recent high court case.
Photographs, videos, and content on social media can be extremely useful materials, but it may also be expensive. Copyright in a photo or video will generally lie with the individual who took the picture. This means that copying photos or videos from social media could lead to a claim in copyright infringement. It is generally best practice to seek the consent of the individual who took the photo, as it will stop the potential of a claim for infringement and may also be cheaper in the long run i.e. no claim for damages and it is likely the individual will ask for a higher amount than they would have if permission was granted.
The problem, of course, is that as often as not; it is not possible to identify the copyright owner. There is no clear legal answer to this problem, other than to say that each photo has to be considered on its own merits.
In terms of privacy – everyone is entitled to respect for their private and home life, but this right is subject to a ‘reasonable expectation of privacy’. Questions arise as to whether privacy is reasonable when the materials are already public i.e. when an individual publically discloses information themselves through Facebook.
Therefore, there is still a ‘reasonable expectation of privacy’, even if posted publically. However, what about if there is a public interest in publishing it?
This was discussed in a recent high court case in Northern Ireland, whereby a mother, who admitted smuggling drugs into prison for her son, failed to obtain an interim injunction banning the Irish News from publishing a picture of her, taken from her Facebook page, and an anonymity order in respect of her identification.
The Irish News used an image of the mother which appeared under an article with the headline “Boxer’s mother accused of bringing drugs into jail”. The mother pleaded guilty to the offence and was duly sentenced. In deciding whether a right to privacy existed, one of the factors considered was a balancing exercise between the rights of each party under Article 8 (right to privacy) and Article 10 (right to freedom of expression) of the ECHR.
The Judge concluded that the subject of drugs in prison was, and remains, a matter of great public concern, and in how these drugs are obtained. The photo did not depict the mother in a derogatory or unseemly light i.e. in police handcuffs, but in fact, she was happy. Although there were a number of unpleasant comments on the picture about the mother, there was no evidence to suggest a risk of personal injury to the mother.
An important deciding factor took into account was the principle that the freedom of expression is; (1) an essential foundation to a democratic society, (2) the essential role played by the press in a democratic society, (3) the duty of reporting and commenting on court proceedings, (4) it is not down to the Court’s decision to substitute its own view on the techniques adopted by the press and (5) it involves certain duties and responsibilities not to attack and infringe an individual’s reputation.
Although this judgment is encouraging for publishers and journalists who are considering the use of material from social media, there should always be a reminder in the back of the mind about the level of detail obtained from an individual’s Facebook page.
And finally, we must never forget Data Protection, especially in the week when the GDPR finally comes into force and the new Data Protection Act (by which the GDPR will be implemented) will finally reach the statute book.
Even if the material has been posted to social media with consent and is no longer private, some or all of it may still arguably be legally protected.
The key point to remember under the new law (subject to the journalistic exemption, of course) is that “consent is king”.
Our prediction is that there is going to be a lot of data protection activity in the coming weeks and months, and journalists need to continue to be careful when dealing with the personal data of individuals, whatever the form it takes.