Legal Briefing

Social media reputation: threats and solutions

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TMT | 01 July 2010

Social media has changed the way the public consumes information and digital news channels mean that stories break even more rapidly than they have ever done before. The upsurge in media outlets and the rapid development of new ways of consuming media through devices such as Smartphones (eg iPhone) has changed the way that fans connect with their favourite teams and sports personalities, both on and off the field.

The number of British-based sports stars and clubs who use microblogging networks to reach their fans directly is surprisingly high. Instead of a traditional website or blog that might require development, maintenance and strategic insight, microblogs, such as Twitter – where posts are limited to 140 characters – offer an easy channel by which to share thoughts and communicate with fans.

The marketing potential of Twitter has quickly been seized by sports brands, clubs and their players. Supporters of the England cricket team have been able to follow thoughts on training, practice and the banter of the ICC World Twenty20 winning team through spin bowler Graeme Swann’s Twitter page.

But it is where the public and private communication of social networking collide that reputation dangers lurk. The reality of engaging in these online conversations often means an increased threat to the sports industry’s reputation, and the threat of a media crisis spilling over into the traditional press can be embarrassing, expensive and ultimately can destroy the careers of world-class sports stars.

Developing an online media strategy to prepare for and handle a potential new media crisis is paramount. This article focuses closely on the legal issues that arise in protecting reputations online.

Social Networking

Facebook and Twitter are phenomenally popular sites. Since their inception in 2004 and 2006, respectively, Facebook now has over 400 million active users and Twitter approximately 75 million. Their reach is global and, while only 1% of the British public regularly use Twitter, these websites heavily influence the way both new and old media develops and reports. News regularly breaks on Twitter and then makes its way into the mainstream. So while most people may not actually be using Twitter themselves, there are enough people who do and who are ultimately influencing the news cycle. During the days following the recent general election, even the Conservatives’ William Hague was ‘tweeting’ to say: ‘Will be returning to the Cabinet to resume negotiation with the Liberal Democrats.’ The Times then reported: ‘It’s official – all news now breaks on Twitter.’ If there is one place to monitor your brand or sports personality, Twitter now seems like a very good place to start.

Although celebrities and sports stars have successfully used social networking sites and blogs to promote charities and projects, and to build relationships with fans, the danger of online indiscretions turning into a print media crisis is clear. Indeed, a look at the Daily Mail’s website is instructive. At the time of writing, a search on the Mail’s website for the exact phrase, ‘according to his Facebook page’, returns more than 100 stories, with the private thoughts, comments and photographs of the great, the good and the not so good. Sports stars are particular targets of the press in this way. Indiscreet ‘tweets’ or embarrassing Facebook photos make easy copy for the press, and can cause distress and reputational damage, not only to the player but also to the club and the sport.

That is not to say that this conduct of the tabloid press, of copying and pasting private communications and photographs direct from social networking sites, is lawful. Issues of privacy and confidentiality arise where the user has posted information only to a closed group of friends and copyright in private photographs still vests in the individual, despite Facebook’s recent (abandoned) proposals to require an assignment of copyright in all photos posted on the website. Interestingly, the Press Complaints Commission (PCC) has recently clarified its position on newspapers using material taken from social networking pages:

‘Newspapers still remain entitled to make use of publicly available material obtained from social networking sites. However, editors should always consider the impact when taking such information (which may have been posted in a jocular or carefree fashion).’

The PCC has recently ruled that the magazine Loaded was not in breach of the PCC Code by simply publishing a piece discussing the widespread availability of information (namely pictures of the complainant’s ‘epic boobs’) taken from a social networking site.1 The PCC indicated that if Loaded published a piece based on information they had taken from the complainant’s social networking pages, the outcome may well have been different.

The key for sportsmen and women is education. If they don’t post indiscreet or embarrassing material on their social networking pages, or they at least ensure that their security settings are at the very highest, then the risk of private information being obtained by the printed press is minimised.

Investigate what is out there already?

Fake profiles

Almost all social networking sites have terms and conditions dictating that users cannot create a false profile or impersonate someone they are not. Facebook say:

‘You will not provide any false information on Facebook, or create an account for anyone other than yourself without permission.’

Twitter say:

‘You may not impersonate others through the Twitter service in a manner that does or is intended to mislead, confuse, or deceive others.’

Fake profiles not only breach the website’s own standard terms and conditions, they are potentially in breach of a whole host of laws, most notably false attribution of copyright. False attribution, in recent years, has been a much under-used legal tool. However, the flood of fake social networking profiles could rejuvenate the use of this area of law. Back in 1972 Dorothy Moore, ex-wife of Roger Moore, sued the News of the World for false attribution of copyright after the newspaper published an article describing it as ‘by Dorothy Squires’ (Moore v News of the World [1972]). Dorothy Moore had given an interview to one of the journalists, but had neither authored the article nor approved how the News of the World intended to publish it.

Fast-forward to the internet age and in Applause Store Productions Ltd & anor v Raphael[2008] the laws of privacy and defamation were relied on, as opposed to false attribution, where a business rival had set up fake Facebook profiles.

Raphael was a former friend of Matthew Firsht, director and owner of Applause Stores. When they fell out, Raphael created a fake profile containing false information about Firsht’s sexuality, relationship status, and political and religious views. Raphael also set up a group called ‘Has Matthew Firsht lied to you?’, which contained several defamatory postings claiming that Firsht owed lots of money, lied to avoid paying it, was not to be trusted and was a credit risk. Firsht discovered the profile by accident and Facebook removed it when notified. Firsht then obtained a Norwich Pharmacal order (Norwich Pharmacal Company & ors v Customs & Excise [1973]), which revealed Raphael as the culprit. Raphael was subsequently sued for defamation and invasion of privacy. The court did not believe Raphael’s ‘utterly implausible’ claim that a complete stranger who had visited Raphael’s house for the first time had set up the profile. Firsht was awarded £15,000 and Applause Stores £5,000 in respect of the defamatory allegations. For the invasion of privacy, Firsht was awarded £2,000 for distress and injury to feelings. It may have been easy for Raphael to set up a false and damaging fake profile, but he did not find it so easy to escape liability for his actions.

The author is not aware of any cases that have been pursued against social networking sites themselves in relation to fake, abusive or otherwise unlawful profiles. However, Electronic Commerce (EC Directive) Regulations 2002 provides that websites will only be afforded protection against such proceedings where they ‘act expeditiously to remove or disable access to the information’. The key in Applause Stores is that Facebook removed the offending pages, a requirement that social networking sites will surely continue to fulfill to avoid the risk of proceedings.

Bloggers and webhosts

Citizen journalists and bloggers are very much creatures of the 21st century. Blogs, particularly the anonymous variety, are a serious concern. Most are banal and anodyne, with very few followers. Yet when people believe they are anonymous and have hidden their identity from the world, they frequently do not pull any punches and brazenly make the most serious of allegations without regard for the consequences, either for the target or themselves.

So what can you do if you find someone who is posting defamatory, private or otherwise unlawful material online, but doing so anonymously? As discussed above, the EC Directive provides those being attacked with the option of issuing a notice to take down to the web host themselves. Fortunately for those being smeared, and unfortunately for attack bloggers, the individual blogger, poster or forum user can be identified. Internet service providers (ISPs) and web hosts will hold certain information about those using their services or posting material onto a website. From this information, it will be possible to locate and identify the culprit. You can apply for a Norwich Pharmacal order that essentially unmasks the online wrongdoer by requiring the ISP or web host to reveal the identity and contact details of the poster. Such an order will allow you to identify the parties against whom you should be considering taking action.

Recent case law should make the bloggers sit up and take note. In The Author of A Blog v Times Newspapers Ltd [2009], the High Court refused an injunction on behalf of the blogger behind the ‘NightJack’ blog. The blogger, detective constable Richard Horton, was blogging about the life of an active policeman. He argued that his identity should remain secret as revealing it would put him at risk of disciplinary proceedings. Eady J held that this was no reason to prevent disclosure of his identity. More critically, the fact that the blogger wanted to remain anonymous did not mean that he had a ‘reasonable expectation’ that this would be so. Mr Horton was blogging to the public and his identity was revealed. Eady J took the view that ‘blogging is essentially a public rather than a private activity’.

At the same time as seeking to unveil the blogger, when concerned about private or confidential information as opposed to defamatory allegations, those concerned can apply for what is known as a John Doe order. The order is an injunction against unknown persons and is a very useful tool when dealing with anonymous bloggers. The major benefit of a John Doe order is that it can be served on the media (both print and online) and it will prevent them from further disseminating the information that should be contained.

Sport as a global issue

Sports brands, clubs and players often need to protect their reputations, or protect their privacy from attack, internationally. The internet itself creates an automatically global aspect. Information posted online on the other side of the world can be instantly read in the jurisdiction of England and Wales. The internet publication rule is that, where information is read and accessed in this jurisdiction, it is therefore actionable in this jurisdiction.

The UK media has cried ‘libel tourism’ and pushed hard for reform of the libel laws in this jurisdiction. However, such arguments conveniently ignore the very strong libel and privacy laws across Europe in other jurisdictions. There have been calls for reform to debar claims that are made against websites where less than 10% of the readership of that website is based in England and Wales.2 Such arguments fall down when it is considered that very influential publications published in England may have low website penetration. For example, only 7.6% of users of the Economist’s website are based in this jurisdiction.

The reality is that English courts will actually protect defendants where claimants are genuinely abusing the English court system, and where they are bringing a libel action where there is no real and substantial tort in this jurisdiction. In Dow Jones & Co Inc v Jameel [2005] the Court of Appeal held that, where only five persons had read the offending article in this jurisdiction (some of whom were Jameel’s own lawyers), the case was an abuse of process and should therefore be struck out.

Often, where there is significant publication in England and Wales, and a significant reputation to protect, then this will be the correct jurisdiction in which to pursue proceedings. However, Schillings works with an international network of media lawyers to ensure that its clients can be well-represented in the correct jurisdiction at short notice and 24 hours a day.

The same is true of protection of privacy and family life. Article 8 of the European Convention on Human Rights (ECHR) ensures privacy protection across Europe and, despite the press rallying against English privacy law, courts across Europe have often taken an even stronger approach. In countries such as Spain, for instance, the law of privacy is enshrined in the country’s constitution. The Spanish law of privacy and reputation is governed by the 1982 Civil Act on the Rights to Honour, Privacy and Image, and serious attacks on a person’s dignity and reputation can be heard in the criminal courts.

Protecting privacy, family and security

The most frequently asked question in respect of privacy is whether or not there is a privacy law in England and Wales, as exists in countries such as Spain and France. The answer, invariably, is more complicated than the question, but in its simplest terms the answer is yes, there is, in effect, a law of privacy in England and Wales. How has this developed and where does the law stand today?

The law of privacy arises out of Article 8 of the ECHR, which was incorporated into the law of England and Wales via paragraph 1 of the Human Rights Act (HRA) 1998. Article 8 of the ECHR provides that ‘everyone has the right to respect for his private and family life, his home and his correspondence’, and this is the basic right that, as a result of HRA 1998, is enshrined in the law of England and Wales. HRA 1998 goes little further than incorporating this right into law and therefore it has been left to the courts to develop the law of privacy through case law. As a result, the media would have you believe that the law of privacy has entered English law by ‘the back door’.3 However, this is far from the truth. The media were well aware that HRA 1998 would create a law of privacy, and, consequently, when the bill that led to HRA 1998 was being debated in Parliament, numerous submissions were made by the media and MPs on this precise issue, arguing for exclusions to avoid such a law of privacy being created. Ultimately it was decided that Article 8 of the ECHR should be included in HRA 1998 and that it was to be left to the judges to develop the law in conjunction with the European courts, although s12 of HRA 1998 was added to allay the concerns of the media.4 Section 12 essentially requires the court, before granting an injunction prohibiting publication, to be satisfied that applicants have taken all practicable steps to notify the media and, more importantly, that the applicant is likely to establish at trial that publication should not be allowed, which is a higher threshold than that required for other interim inunctions.

The law of privacy has developed since the landmark ruling of Campbell v MGN Ltd[2004], which first recognised intrusion into privacy. One of the most illuminating cases setting out the law of privacy as it stands is that of Mosley v NGN [2008]. The News of the World obtained details and undercover video footage relating to Mr Mosley’s sex life. The details were reported at length in the newspaper and the video footage was put online on the newspaper’s website. Both were ultimately seen by millions. Mr Mosley’s attempts to obtain an injunction were unsuccessful as by the time he applied for it, granting an injunction against the News of the World would have been futile as the video and article had been seen by millions, and were widely available elsewhere on the internet. As injunctions are an equitable remedy (and equity will not act in vain), Eady J held that granting one would not have been appropriate.

The author does not consider that there is much debate as to whether or not the details and video were an invasion of Mr Mosley’s privacy, and therefore the issue of whether or not it was in the public interest for the newspaper to publish such intrusive details. In these instances it is necessary for the court to weigh the individual’s right to privacy (pursuant to Article 8 of the ECHR) with the media’s right to freedom of expression.5 Neither the ECHR nor HRA 1998 gives one right primacy over the other and therefore it is necessary for the court to balance the two rights in each instance. There are numerous considerations that go into this balancing exercise and these will differ in each case. However, to supplant an individual’s privacy the primary considerations are:

  1. the exposure of illegal activity;
  2. to prevent the public from being seriously misled by public claims that turn out to be untrue; and
  3. because the information would make a contribution to a debate of general interest.

In this instance, points 1) and 2) did not apply and therefore point 3), that the publication is in the public interest, was the crucial issue, and it is essential to consider the value of the speech in this context. So when deciding what is in the public interest, and not necessarily what interests the public (Von Hannover v Germany [2005]), political speech has a high value (Campbell) and idle tittle-tattle has a low value.6 In Mosley, it was held that the relatively low value of the speech and explicit details of legal sexual encounters, was outweighed by the significant intrusion into Mr Mosley’s privacy.

In summary, the primary clarification to be taken from Mosley is that publishing all the salacious details of a story is not necessarily in the public interest (paragraph 20, Mosley), that an individual’s sex life is essentially their own business (paragraph 100, Mosley), that even public figures are entitled to a private personal life (paragraph 101, Mosley), that it is not for judges to make individual moral judgments or be swayed by personal distaste (paragraph 130, Mosley), and that where the courts identify an infringement of a person’s right to privacy, and in particular in the context of their freedom to conduct their sex life and personal relationships as they wish, it is right to afford a remedy and to vindicate that right. The only permitted exception is where there is a countervailing public interest that is strong enough to outweigh it.7

Fast response

It is essential when seeking to protect an individual’s privacy that there is a fast response to the threat of publication. Unlike in defamation, where it can be argued that a reputation can be restored through appropriate vindication, such as an apology and damages, in privacy the genie cannot be put back in the bottle. Once private information has been published to the world at large, that information can never again be restored to its status as ‘private’ and no amount of damages can resolve this. For this reason, when an individual becomes aware of a likely, or possible, publication of private information, it is critical that they act quickly.

There are, however, two parts to this equation. The first is becoming aware of the information and the second is acting quickly. As regards the first, the media are well aware of the risk of an individual applying for an injunction when private information is to be published and, therefore, as occurred in Mosley, the publisher may intentionally not give the individual notice of the story so as to deny them the opportunity to properly protect their private information by way of an injunction.8It is for this reason that Mr Mosley is seeking a ruling from the European Court of Human Rights that a publisher is legally obliged to give an individual notice when they intend to publish private information. This would merely give the target of the story the opportunity to take action before it is too late and avoid the unexpected exposé.

It will be necessary to wait and see what the court decides in this regard, but on the basis that an individual does receive notice it is crucial that rapid action is taken. It is possible to obtain an injunction to prevent a breach of privacy, as compared to the situation with a potentially defamatory allegation where it is not possible to do so, but naturally, where a party is successful, the judgment is not public for obvious reasons.

what does the future hold?

Looking forward, the internet will continue to pose a threat to reputation and privacy. Social networking has allowed and encouraged people to publish a great deal of private information that the press frequently use as the basis for articles or to flesh out an article. Blogging has also given everybody an easy opportunity to attack someone’s reputation or breach their privacy.

The number of unidentifiable attacks on reputation and anonymous invasions of privacy will only increase as technology advances. The internet has amplified the risk so that defamatory allegations and private information can become global in a matter of seconds. The internet is frequently the first port of call for journalists researching a story. Overseas local media may publish something that then finds its way into the UK press as the subject has some connection with the UK.

While social networking and blogging have obvious advantages, opportunities and appeal, they are not without their risks. Clients should be aware of these risks and monitor their online reputation to ensure that they are prepared to deal with any issues that arise, and to do so before it is too late.

notes

  1. See http://www.pcc.org.uk/cases/adjudicated.html?article=NjM5OA==?
  2. See http://www.justice.gov.uk/publications/libel-working-group-report.htm.
  3. See http://www.guardian.co.uk/media/2008/nov/10/paul-dacre-press-threats.
  4. Lord Wakeham’s amendment proposed to the House of Lords became s12.
  5. Pursuant to Article 10 of the ECHR, which states that: ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions, and to receive and impart information and ideas without interference by public authority and regardless of frontiers.’
  6. See paragraph 147, Jameel & ors v Wall Street Journal Europe Sprl [2007].
  7. See paragraph 131, Mosley v NGN [2008].
  8. As admitted by Colin Myler (the editor of the News of the World) in the Mosley trial.