Personal privacy in an age of social media

If we think back 10 years ago, social media’s presence in our lives was vastly different.  Facebook dominated people’s perception of social media and although Instagram had been launched three years prior, Instagram had not become the global powerhouse that it currently is. Apps like TikTok were still a few years away and dating apps such as Tinder and Hinge were in their infancy. The concept of ‘going viral’ and being seen by millions overnight was still on the horizon.  Yet, even a decade ago, there was an understanding that the rise of social media likely meant the decline of personal privacy. Indeed, in 2013 we predicted that “unless people are very careful, their private life is gradually becoming a lot less private”.

Over the last decade we have seen that this is indeed true. Social media has impacted nearly every facet of people’s lives from their working life to their personal and private lives. A social media search has become ever more common in job applications, so what you have posted in the past and, what you continue to post is increasingly important. This is an increasingly uncontroversial statement and usually followed by advice that the majority have heard many times such as keeping personal social media accounts on private and being wary of revealing personal information. Instead of repeating this advice, looking at particular legal issues surrounding personal privacy in an age of social media may be more effective to ascertain the ever-developing impact of social media on personal privacy.

One of the biggest topics of the last few years is the rise of Revenge Porn. Revenge porn is when explicit images or videos, which may have originally been taken consensually are shared without the consent of one of the parties. The Criminal Justice and Courts Act 2015 makes this punishable by up to two years in prison or a fine. One of the most famous instances of this offence in the UK was committed by a reality star Stephen Bear who shared an intimate video of himself having consensual sex with a woman through WhatsApp and also posted it on his OnlyFans where subscribers were charged $9.99 to view the video. An important distinction was drawn between consenting to be filmed and consenting to have these images and videos shared.  In 2022, the BBC reported that despite this legislation, cases of Revenge Porn have doubled in the last five years. A specialised helpline was established in February 2015 to help victims of revenge porn and reports a 90% removal rate since its establishment. One of the main reasons for this rise has been the ready access to the internet. Indeed, a study by McAfee, a firm that specialises in security software, reported that 49% of people had sent a sexually motivated video, photo or text in their lifetime. The rise of Revenge Porn is a personal privacy issue which have developed alongside the rise of social media.

Images of you being shared by someone else do not have to be explicit to be problematic. One of the clearest examples of the increasing lack of privacy caused by the rise of social media can be seen in the rise of ‘child influencers.’ A clear example of this phenomena can be seen in the rise of ‘family’ YouTube channels which purport to show the daily lives of a family and children growing up. More recently, questions have been asked about the privacy of the children involved in such channels who often have important and difficult stages of their lives viewed by millions around the world. The children involved have seemingly never had a choice about their digital footprint on the world, as many of these channels document the children from the day they are born and show children when they are too young to understand or give consent to their image being shared. In the United States and France, the acknowledgement of some of the problems behind these channels have been tackled. For example, Illinois has brought in a law which acknowledges a child’s participation in a monetised social media presence as ‘work’ and requires a proportion of profits generated to be held on trust for the child until they turn 18. The vast majority of people posting their child on social media are not doing so for profit however, some of the complaints raised by these child stars bring some important issues surrounding privacy online. By posting a child on social media, one is creating a social media footprint for them, one they will likely never be able to escape as they age. Evermore children are growing up with parents actively using social media, meaning it will be interesting to see if any reforms concerning the protection of children’s privacy will be implemented.

So, since 2013, social media has definitely become more pervasive, more powerful and more intimate. Whilst most use it to share some of the greatest moments of their lives such as weddings, graduations, birthdays or even a really good night out with friends, it is clear that the boundaries around what we choose to share or what gets shared about us are widening.

The Online Safety Act which received Royal Assent on the 26 October 2023 has updated the law surrounding the consensual sharing of nude or explicit photos between consenting adults.  A duty of care has been introduced requiring social media platforms to protect children online, with Ofcom’s code of practice obliging providers to keep children’s location data private, restrict who can send children direct messages, and remove children from suggested friend lists.  However, questions are already being asked about whether or not the Act goes far enough and there remains a debate around whether laws similar to those introduced in Illinois and France should be introduced in England to protect children further.

Whether you are facing defamation in the press, by an individual, harassment, blackmail, mishandling of your private data, pre-publication threats, or you wish to gain top legal advice on such matters, reach out to our leading reputation and privacy team today.