Social media lawyers – privacy
This social media lawyers privacy article is primarily concerned with the balance between social media privacy and the right of self expression. Social media privacy is guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (“the Convention”) is primarily a negative obligation aimed at arbitrary state interference with the rights of the individual. The state is to abstain from interference with or respect the rights of the individual. However for the effective enforcement of the Convention it must also impose a constructive or positive duty by its nature. By that I mean Contracting Parties (the Convention is a treaty) are also required to adopt measures to prevent the interference with the rights of the individual either by the Contracting Party or by a third party within the jurisdiction of the Contracting Party. For example where a clause in a contract were to interfere with a fundamental human right then it would be unenforceable. I got to thinking about the positive obligation imposed by the Convention after coming across Sciacca v. Italy, no. 50774/99, 29, ECHR 2005-I again recently. To my mind, any obligation to protect a fundamental right must include the prevention of third parties from interfering with that right and to actively promote access to enjoyment of that right by the holder.
Sciacca v. Italy, no. 50774/99, 29, ECHR 2005-I
CS complained to the Court that the release of her photographs at the press conference was a violation of Article 8 of the Convention. The Italian government argued that CS’s Article 8 right was limited by the public’s right to be informed and by the aim of preventing further criminal offences. They also relied on Article 10 of the Convention. The Court found that there had been a violation of Article 8 of the Convention. In other words, the Court had found that private life includes elements relating to an individual’s right to their image. In the Sciacca case the police had wrongfully released photographs of CS to the press, in breach of their negative and positive obligations to ensure CS’s right under Article 8 of the Convention.
In the same way, a person’s image in photographs or video clips stored online or offline does fall within the scope of Article 8 of the Convention. A third party posting the right holder’s photograph without consent on Facebook, Twitter, Tumblr or other social media or discussion group would be a breach of the positive obligation imposed by Article 8 of the Convention which protects social media privacy. Further, the Contracting Party must guarantee that the right holder has access to the enjoyment of Article 8 of the Convention, when the right holder is unable to do it for him or herself; for example where a website is refusing to protect social media privacy by removing an offending image or video clip.
Article 8 of the Convention provides:
Everyone has the right to respect for his private and family life, his home and his correspondence.
There are therefore four expressly protected interests:
(i) private life;
(iii) home; and
It is therefore clear that there is an explicit obligation not to interfere with any of the 4 expressly protected interests. But then the explicit obligation is subject to limitations. First interference may be justified as a result of a specific prescribed law and second the interference must also be necessary in a democratic society.
Article 8 then goes on to list matters as a result of which interference will be warranted by law and by necessity in a democratic society:
danger to national security;
risk to public safety;
risk to the economic well being of the country;
prevention of disorder;
prevention of crime;
protection of health;
prevention of morals; and
protection of the rights and freedom of others.
In other words, although the Article 8 right is not absolute the circumstances in which there can be interference with it are strict. Managers responsible for social media privacy policies should bear this in mind particular when deciding to use a photograph or video clip without consent.
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