Using photographs from social media—rights of privacy

Using photographs from social media—rights of privacy

The Independent Press Standards Organisation (IPSO) recently upheld a complaint against a newspaper after it published an image taken from social media without consent. Duncan Calow, a partner at DLA Piper, explains the background to the complaint and the implications of the ruling.

What is the background to this complaint to the independent press standards organisation (IPSO)?

A national newspaper published an image taken from social media, without consent, picturing a man accused of murder with a woman described as a ‘friend’. The woman complained to IPSO that this use of the image breached the Editors’ Code of Practice in respect of Reporting Crime and Privacy.

The article referred to the accused’s relationship with a ‘glamour model’ and to the image as: the accused ‘with a friend’. The complainant said the photograph was taken in 2006. She said it identified her to family, friends and co-workers and might suggest she was the glamour model mentioned.

She argued the photo was taken where she had a reasonable expectation of privacy—a private event in enclosed college grounds. Even if it had been taken from a public Facebook page, she had not consented to its circulation and the page owner had been unaware of its unprotected privacy settings.

What was the newspaper’s position on expectation of privacy?

The newspaper said that there was a public interest involved and, since the complainant no longer knew the accused, Code restrictions regarding family and friends should not apply. Those who did recognise the complainant would be aware that she had no continued association with the accused.

The newspaper said that those pictured in the photograph had a limited expectation of privacy, and that the content of the image was innocuous. Given this, and the fact that the Facebook album from which it was obtained was publicly accessible, it did not accept any breach of privacy.

What were the IPSO Complaints Committee’s findings?

The Committee upheld the reporting crime complaint, stating that, while the article, as a whole, made clear that the complainant was not the ‘glamour model’ cited, it still asserted a direct association with the accused and no public interest could justify the privacy intrusion this had caused.

The Committee did not uphold the wider privacy complaint. It noted the source and the lack of consent, but said that the image conveyed only the fact of an association with the accused. This was not in itself private, and raised no additional issues beyond those considered above.

What can lawyers advise their clients about using images taken from social media without consent?

This case provides helpful guidance on applying the Code to images taken from social media. Even if the images depict or convey information of an inherently public nature, and so do not appear to raise generic privacy issues, care is still needed as to the context and nature of their use.

What other messages can lawyers take from this ruling?

The case has relevance beyond newspapers and those bound by the specific rules of IPSO. It is a reminder that, while easily accessible social media content seems ‘in the public domain’ and so available for unrestricted re-use, the legal and regulatory reality may be very different.

Using such content without permission may breach privacy/data protection law and, potentially, also copyright and intellectual property, as well as other rules such as the contractual terms of the social media platforms. Great care is always needed with commercial use of user-generated content.

Interviewed by Alex Heshmaty.

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