Privacy and the Age of Inadvertent Publishers

A couple of weeks ago, the Press Complaints Commission gave its first ruling about the publication of information originally posted on Twitter. The ruling followed a complaint made by a civil servant about newspaper articles reporting various tweets she had posted. The tweets set out her feelings towards her job, including comments that she had been hung-over at work.

The lady in question was horrified to see her tweets reported in the Independent on Sunday and the Daily Mail. She argued that the information contained in them was private and that she had a "reasonable expectation" that her messages would be published only to her 700 or so followers. She also pointed to the fact that she had included a clear disclaimer on her Twitter feed that the views expressed there were personal, rather than her employer’s.

The two newspapers successfully argued that the lady’s Twitter account was not private. The posts could be read by anyone and not just her "followers". At the time of publication, the lady had taken no steps to restrict access to her messages and was not publishing anonymously.

In response to the complaints, the PCC concluded that there had been no breach of Clause 3 (Privacy) of the Editors' Code of Practice. The publicly accessible nature of the information was a "key consideration". It was clear that the potential audience for the information was actually much larger than the 700 followers, not least because any message could easily be retweeted to a wider audience. The newspapers' actions did not constitute "an unjustifiable intrusion" into the complainant's privacy.

The civil servant found herself in the role of publisher, with all the risks and liabilities that go with that role. This is the same for anyone who uses social media, such as Twitter or Facebook. A person who posts material on social media will be a publisher for the purposes of English law. How big your audience is, and therefore the extent of your potential liability, will depend on the privacy settings you have selected.

When one couples this with the number of people who allow general public access to their online social networks (40%)¹, we get an idea of the extent to which the general public have become publishers with a potential worldwide readership. Facebook’s "statement of rights and responsibilities" states that "when you publish content or information using the "everyone" setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you." This is particularly important to note given that the default privacy setting for certain types of information you post on Facebook is set to "everyone."

Despite all of this, a large proportion of people using social media are blissfully unaware of the responsibilities that go with being a publisher. For example, it is unlikely that the average 16 year old understands his or her potential liability for defamation or infringement of another person’s privacy. Would the average 16 year old appreciate the “repetition rule” under English libel law? The repetition rule comes into play when somebody publishes a defamatory statement, attributing it to a third party e.g. X says that Y is a thief. The repetition rules states that a defendant who reports another person’s defamatory allegation cannot justify merely be proving that the allegation has been made. He must prove that the underlying allegation is true, i.e. Y is a thief.

What’s more, most of the potential legal pitfalls for publishers are strict liability offences i.e. the intention of the publisher is irrelevant. For example, the publisher’s intention is irrelevant for the purposes of establishing liability for libel and copyright infringement. It won’t be a defence to say that you did not intend to infringe the rights of a third party or to defame them.

There is clearly a big gap between the laws governing publication via social media and the public’s understanding of those laws. It’s a gap which must be narrowed. We need more debate on whether the law needs to be changed to provide for the way we use social media or whether more needs to be done to familiarise the public with their potential liability.

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