Newspapers routinely lift material from Facebook and other social media, perhaps on the general assumption that photographs, for example, voluntarily uploaded, as opposed to snatched from behind a long lens, are fair game. But, to the extent that reflects the legal position, does it hold true for content accessed from children’s social media accounts? Should it?
The law protects all private information, including photographs of children, where there is a “reasonable expectation of privacy,” to be balanced against a publisher’s right to freedom of expression and the public interest in publication. The expectation of privacy is typically lost where the information is trivial, already in the public domain, or published with consent.
It is true that at some tipping point the general availability of the material in question will quash any reasonable expectation of privacy, a consideration echoed in the IPSO Editors’ Code of Practice. Clause 2(ii) states: “Editors will be expected to justify intrusions into any individual’s private life without consent. Account will be taken of the complainant’s own public disclosures of information.”
However, journalists should be wary of assuming the tipping point is automatically reached every time information is made “public” on social media.
In a 2013 case involving Kate Winslet’s husband, Edward “Ned” Rocknroll, Facebook photographs of him published by a friend, initially to 1,500 people but later more widely after a change in privacy settings, were deemed not to have entered the public domain via Facebook. There was, therefore, something by way of privacy left to protect. On the flipside, as recognised by the IPSO Code, it may in the public interest to publish information released on a limited basis and to a small number of people to begin with, more widely, where that would otherwise be an invasion of privacy. As ever, each case will be a matter of fact and degree.
Copyright law is also relevant. In the UK anyone who creates a photograph retains the copyright even when it is uploaded to social media sites such as Facebook. By using a photograph from social media (of a child or otherwise), journalists are therefore at risk of opening themselves up to a legal complaint, although they may able to rely on one of the “fair dealing” or public interest defences. .
Research conducted by Nominet last year found that children will feature in almost 1,000 online photos by the time they reach the age of five and perhaps surprisingly, there is still no specific guidance or law around the use of children’s social media content.
Both the law and the IPSO Code do however accept that there is a special importance in safeguarding children’s privacy. Clause 6 of the Code makes clear that “All pupils should be free to complete their time at school without unnecessary intrusion,” also that “Editors must not use the fame, notoriety or position of a parent or guardian as sole justification for publishing details of a child's private life.” Finally, on public interest, it stresses that “An exceptional public interest would need to be demonstrated to over-ride the normally paramount interests of children under 16.”
The Court of Appeal recently upheld a decision that the privacy rights of Paul Weller’s children had been breached when seven un-pixelated photographs of them were published by The Daily Mail in 2012. Although not a social media case, it demonstrates the added weight the law gives to children’s privacy. The judgment included Lord Dyson MR’s statement that: “although a child's right is not a trump card in the balancing exercise, the primacy of the best interests of a child means that, where a child's interests would be adversely affected, they must be given considerable weight. It might require very powerful art.10 rights (for example, exceptional reasons in the public interest) to outweigh a child's art.8 rights where publication would be harmful to the child.”
Arguably, where social media is concerned, there is a need for further regulatory guidance.
In the meantime, journalists and editors should take extra care before mining and publishing what may in fact amount to children’s private information, in particular photographs. Watch out for privacy settings and ask yourself whether publication is really necessary. Beware however of instigating contact with children, which may in itself be intrusive. Ultimately, don’t assume that children’s clear rights to privacy can be ignored.
Isabella Piasecka (pictured) is an Associate at Carter-Ruck