Fishburn Hedges

05.05.2011

What does privacy mean in an online world? There is an argument that it means hardly anything at all these days. People have adopted a public persona online; they have developed a culture of information exchange such that privacy will lapse as a "social norm". 

An opposing argument would be that the online world gives people the chance actually better to define what they wish to be private: via privacy settings on Facebook, say, they can make clear to the world what information is for public consumption, and what they wish to restrict to a smaller audience.

In truth, there will be no clear answer. People will use social media in different ways, and with clear differences in their level of understanding of the implications of their actions. What is clear is that journalists now have the outpourings of non-journalists as a resource of information and it is important that there are ethical guidelines. We believe at the PCC that we are able to provide them and that a voluntary Code, reinforced by practical guidance from case law, is an extremely effective model for maintaining standards in this area.

The PCC has already established expertise here. In addition to a permanent online working group continually looks at developments and challenges we have also made a number of key rulings about the way in which newspapers can - and cannot - use material that has originated on the internet.

Key Tests

When regulating the use of material taken from social networking sites, we now have five key tests for the PCC to look at:

• First, what is the quality of the information? How private is it in itself?
• Second, what is the context of the information? Material that has been uploaded as a joke between friends, for example, may not be suitable for journalistic use in a story about a tragedy.
• Who uploaded the material, or consented for it to be uploaded?
• How widely available is the material online; or, to put it another way, what privacy restrictions were placed on it?
• And finally what is the public interest in publication?

Publicly available material

Around the time of the 13^th anniversary of the Dunblane massacre the Scottish Sunday Express reported on pictures posted on Facebook by survivors (showing pictures of drinking and revelry) and claimed that they represented the "Anniversary shame of Dunblane survivors". The Commission strongly criticised the newspaper and stated that:

"the images appeared to have been taken out of context and presented in a way that was designed to humiliate or embarrass [the individuals]. Even if the images were available freely online, the way they were used - when there was no particular reason for the boys to be in the news - represented a fundamental failure to respect their private lives. Publication represented a serious error of judgement on the part of the newspaper".

This case revealed a key principle: information that was publicly accessible can still be private. The nature of the information and its context was vital. Context is particularly important in the reporting of tragedies. We also looked at a case involving the Sunday Times, in which the sad suicide of a young student was reported, using information taken from his MySpace page. The paper stayed on the right side of the line, but we used the ruling to make clear that:

"editors should always consider the impact on grieving families when taking information (which may have been posted in a jocular or carefree fashion) from its original context and using it within a tragic story about that person's death".

Information behind privacy settings

The PCC has also been asked to consider whether it is acceptable for journalists to use information kept behind privacy settings. This was crystallised when the People published a policeman's Facebook comments made shortly after the death of Ian Tomlinson in the G20 protests. The policeman had said, thoughtlessly: "My lot have murdered someone again. Shit happens."

His remark could only have been read by his 250 or so friends. However, one of them alerted the paper, and the journalist was able to be accepted as a friend and so access the material. We judged that this was acceptable in the circumstances, saying:

"It can be acceptable in some circumstances for the press to publish information taken from social networking websites, even when the material is originally intended for a small group of acquaintances and not publicly accessible. However, this will generally be only in cases where the public interest overrides the individual's right to privacy".

Twitter

You will probably be familiar with the recent case of Sarah Baskerville, the civil servant who tweeted and blogged about issues connected to her work. Her musings were picked up by the Mail and the Independent on Sunday. We applied our tests: the information was not particularly private, and had been published by the complainant herself; the tweets and blog were widely accessible; and there was some public interest given Ms Baskerville's role.

We found no breach of the Code. But we also highlighted the peculiarly public nature of Twitter itself. It is hard to control tweets, which can be picked up and used by others. It is, therefore, hard to regard them as private. In Baskerville's case:

"Although there were 700 actual subscribers to the complainant's account, the potential audience was much greater. This was particularly the case as any message could be "re-tweeted" without the complainant's consent, or control, to a larger subscription list. This was a notable feature of Twitter."

Conclusion

These cases show the complexity of the issues, and how changes in technology have contributed - and will continue to contribute - to changed ethical issues for journalists. In such a swift moving and developing environment I would strongly emphasise that only a flexible, non-bureaucratic and evolutionary system like that offered by the PCC can react deftly enough to change. The PCC is showing itself ideally suited both to dealing with specific complaints about alleged intrusions by the press; and to setting boundaries in relation to what behaviour by journalists is permissible and what is not. I believe we can also play an important role in promoting discourse among the public about how best they can protect their privacy in the online environment - particularly on social networking websites. Hopefully this article has been a contribution to that discussion.

 

Baroness Buscombe, Peta, has had a varied career both within the private sector and in politics, prior to taking up her position as Chairman of the Press Complaints Commission in April 2009.

Peta is a Barrister and has acted as legal adviser and counsel to various organisations including Barclays Bank International, New York and Barclays Bank Plc, London, the Dairy Trade Federation and The Institute of Practitioners in Advertising. Most recently she was the Chief Executive of The Advertising Association, Director of Asbof/Basbof and Director of CAP/BCAP. Peta is currently a Non Executive Director of Veolia Central Plc.

Peta has had a distinguished political career and was made a Life Peer as Baroness Buscombe of Goring in 1998. Between 1999 and 2007 she was a Shadow Minister in the House of Lords covering several Whitehall departments including, Education and Skills (DCSF), Home Office, Trade and Industry (DBERR), Work and Pensions, Cabinet Office and Culture, Media and Sport (DCMS). She was also Deputy to the Shadow Lord Chancellor for the whole of that period.

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