Privacy in the age of social networking

In 2008, research commissioned by the PCC indicated that 78% of internet users would think twice about posting material on social networking sites if they thought there was a chance of it being republished by the mainstream media. Given that journalists regularly do use Facebook, MySpace and others as sources of information, it is perhaps surprising, therefore, that the Commission has received only a few complaints about the use of material taken by newspapers from social networking sites.

"Since the [shootings] they had done nothing to warrant media scrutiny, and images appeared to have been taken out of context and presented in a way that was designed to humiliate or embarrass them. Even if the images were available freely online [as they were], the way they were used - when there was no particular reason for the boys to be in the news - represented a fundamental failure to respect their private lives. Publication represented a serious error of judgement on the part of the newspaper."

Conversely, in Goble v The People, the Commission took the view that publication of information was justified in the public interest, even though the complainant's Facebook profile could only be accessed by his online ‘friends' (one of whom contacted the newspaper):

"The individual in question was a serving police officer, commenting on a matter that was the subject of considerable media and public scrutiny. He had done so in a way that made light of a person's death and the role apparently played by the police. There was a clear public interest in knowing about police attitudes (whether publicly or privately expressed) towards the incident. In any case, posting such controversial comments to people who were not obliged to keep the information secret was likely to involve an element of risk on Mr Hayter's part, given his job. The Commission considered that any intrusion into privacy was justified by the public interest, and there was therefore no breach of Clause 3 of the Code."

So what are the lessons from these rulings? The Mullen et al case demonstrates clearly that newspapers cannot automatically justify the use of material simply on the basis that it has appeared previously on the internet and is, therefore, ‘publicly available'. Even if an individual has not taken steps to protect their personal information (by hiding it behind strict privacy settings), newspapers will have to consider whether republication of the material shows respect for the individual's privacy.

The same might apply in cases where the complaint is not that publication breaches Clause 3 (Privacy) of the Code but Clause 5 (Intrusion into grief or shock). That part of the Code requires newspapers to ‘handle publication sensitively'. Therefore, while it might be perfectly reasonable to obtain and publish a picture of someone who has died from the internet, care should be taken that any image does not show the individual in a way that is insensitive to the feelings of close friends and family.

On the other hand, as the Goble case demonstrates (and as the PCC set out in its ruling in Mullen et al) it can sometimes be acceptable for the press to publish information taken from social networking sites, even if the material was originally intended for a small group of acquaintances rather than a mass audience. This is normally, however, when the individual concerned has come to public attention as a result of their own actions, or is otherwise relevant to an incident currently in the news when they may expect to be the subject of some media scrutiny. In short, if journalists are using information that an individual has sought to protect behind strict privacy settings, they will need to demonstrate a clear public interest for doing so.

Fundamentally, journalists should ask themselves many of the same questions as they would when deciding whether to publish any other material. For instance: what is the nature of the material (how personal is it) and what is the public interest in publishing it? But they also need to consider questions that are specific to this issue, such as: has the person sought to restrict access to the material; is the person actually responsible for uploading it themselves?