Tag: Social media

Could Children’s Use of Social Media be Banned in the UK?

Some argue that the primary goal of social media is no longer genuine connection, but the maximisation of user engagement for commercial gain. Platforms generate vast revenues by delivering highly targeted, personalised advertising, incentivising designs that keep users scrolling for longer. With the rise of AI, this content stream has become even more relentless, often amplified by manipulative or overly flattering language that encourages continuous interaction. 

Unsurprisingly, many parents are concerned about their children’s use of social media. Endless scrolling and exposure to videos featuring mindless pranks or viral challenges can have negative effects on both mental and physical health. Increasingly, attention is turning to the platforms themselves: critics suggest that their design may not only encourage excessive use, but also contribute to addiction, anxiety and other forms of harm. 

The US Court Case  

On 25th March 2026, a jury in Los Angeles delivered a damning verdict on two of the world’s most popular social media platforms. It ruled that Instagram and You Tube were deliberately designed to be addictive and consequently their parent companies have been negligent in failing to safeguard their child users. Meta and Google, owners of Instagram and YouTube, must now pay $6m (£4.5m) in damages to “Kaley”, the young woman who was the plaintiff (claimant) in this case. Her lawyers argued that the design of Instagram and YouTube caused her to be addicted to the social media platforms. This addiction impacted her mental health during childhood leaving her with body dysmorphia, depression and suicidal thoughts.  

The judgement has sent shockwaves through tech companies worldwide, not just in Silicon Valley. One tech company insider, who asked not to be identified, told the BBC, “we’re having a moment”. Even the Royal Family chimed in. In a statement, the Duke and Duchess of Sussex said: “This verdict is a reckoning. For too long, families have paid the price for platforms built with total disregard for the children they reach.”   

Both companies vigorously defended the claim and intend to appeal the judgement. Meta maintains that a single platform cannot be solely responsible for a user’s mental health crisis. Google, meanwhile, argues that YouTube is not a social network. 

English Law 

Could such a claim succeed in this country? The tort of negligence provides the best hope for claimants who allege harm from social media use subject to the elements of the tort (duty of care, breach, causation and foreseeability) being satisfied. There is growing recognition in UK law that online platforms may owe a duty of care to users, particularly if the users are children. And the harms of over use of social media  are well documented. However causation is likely to be the most difficult hurdle for claimants in the UK. To succeed, a claimant must prove that a platform’s design caused or materially contributed to the harm they suffered through their use of social media. This is a difficult hurdle when it comes to social media. Psychological harm rarely has a single identifiable cause. Social media companies are likely to argue that their platforms are only one of the many factors which can contribute to an individual’s mental health; alongside family environment, school experiences, pre-existing vulnerabilities and offline relationships to name a few.  

Could social media platforms be treated as “defective products” under the Consumer Protection Act 1987 (CPA)  which carries strict liability for harm? Products, under the CPA, are traditionally understood as tangible goods, not the likes of YouTube and Instagram. It is arguable though that social media platforms are not just intermediaries but “manufacturers” of digital environments, making them liable for defects in algorithms or addictive design. The Law Commission is currently reviewing the CPA to determine if it is fit for the digital age, with a focus on artificial intelligence, software and online platforms. The review, which began in September 2025, may lead to expanded liability for online platforms and software providers. 

It is worth noting that the US case was decided by a jury. In the UK civil cases, particularly those involving negligence, are decided by judges. Juries may be influenced by emotional arguments, whereas judges are trained to apply the law strictly and are less susceptible to being swayed by emotion at the expense of legal principles. 

Despite the issues around causation, a legal action in negligence is probably the best option for aggrieved social media users in the UK; although the lack of Legal Aid and the UK courts restrictive approach to class actions mean a test case would require significant upfront funding. Perhaps insurers, emboldened by the US Judgement, may now be more willing to cover the costs of such a test case.  

Regulating Social Media 

Unlike the US, the UK has moved toward statutory regulation rather than litigation as the primary means of controlling social media harms. 

Since the passage of the Online Safety Act in 2023 (OSA), social media companies and search engines have a duty to ensure their services aren’t used for illegal activity or to promote illegal content, with particular protections for children. The communications regulator, Ofcom, has been tasked with implementing the OSA and can fine infringing companies of up to £18 million, or 10% of their global revenue (whichever is greater). Last month, it published guidance on how platforms must protect children. Furthermore, since platforms are processing users’ personal data, they have to comply with the UK GDPR. The Data (Use and Access) Act 2025, which mainly came into force in February, explicitly requires those who provide an online service that is likely to be used by children, to take their needs into account when deciding how to use their personal data.   

Even before the US judgement, many countries had been considering whether, to regulate social media further and/or ban children from using it. Australia has banned it and others, like France and Denmark, have introduced or are planning to introduce tighter rules. 

The UK government is currently carrying out a consultation to consider whether additional measures are required to keep children safe in the online world. This includes setting a minimum age for children to access social media, restricting risky functionalities and design features that encourage excessive use, such as infinite scrolling and autoplay, whether the digital age of consent should be raised, whether the guidance on the use of mobile phones in schools should be put on a statutory footing and better support for parents, including clearer guidance and simpler parental controls. The consultation ends on 26th May, and the government will respond before the end of July. Alongside the consultation, the government is running a pilot scheme which will see 300 teenagers have their social media apps disabled entirely, blocked overnight or capped to one hour’s use – with some also seeing no such changes at all – in order to compare their experiences. Children and parents involved in the pilot will be interviewed before and after to assess its impact. 

Meanwhile, on 27th March 2026, the government published national guidance that urges parents to strictly limit screen exposure in early years over health and development risks. The new recommendations advise that there should be no screen exposure for children under two except for shared activities. For those aged two to five, usage should be capped at one hour per day, with additional guidance to avoid screens at mealtimes and before bed. 

Parliament is also debating the use of social media platforms by children but remains divided on what action to take. In March, during a debate on the Children’s Wellbeing and Schools Bill, the House of Lords supported a proposal to ban under-16s in the UK from social media platforms. It is the second time peers have defeated the government over the proposal. There is now a standoff between the Commons and the Lords. Whatever happens the verdict in the California court has signalled a rising public expectation for more aggressive regulation of social media platforms. 

Listen to the Guardians of Data Podcast for the latest news and views on data protection, cyber security, AI and freedom of information.   

This and other developments relating to children’s data will be covered forthcoming workshop, Working with Children’s Data.

New Podcast: Filming the Public for Social Media

Act Now is pleased to bring you episode 6 of the Guardians of Data podcast.  

Think about the last time you walked down a busy street, sat in a pub, or queued for a train. Now imagine that moment, completely ordinary to you, being filmed by a stranger, uploaded to TikTok or YouTube and watched by millions. 
Maybe it’s monetised; maybe it’s mocked. One thing is for sure though, it never disappears. 

Filming people in public has now become second nature for some. But what happens when those images are shared, edited and turned into social media content? Can you stop someone filming you in public? What rights do you have when the footage is published? 

In this episode, we are joined by Naomi Mathews, a lawyer who specialises in Data Protection, Freedom of Information and Surveillance Law. Naomi helps us explore what the law actually says about filming people in public; where it falls short and how that affects real people who find themselves turned into content without consent. We’ll also ask the harder questions about ethics, power and whether the UK needs a new law to better protect the public. 

Download and listen here, or on your preferred podcast app. Available on Apple Podcasts, Spotify, and all major podcast platforms. 

Previous episodes of the Guardians of Data podcast have featured Jon Baines, reflecting on his career as a Data Protection Specialist and the hot issues in information governance,  Lynn Wyeth discussing the recent controversy around Grok AI, Maurice Frenkel looking back at 20 years of the Freedom of Information Act, Olu Odeniyi analysing recent cyber breaches and discussing the lessons to learn and Raz Edwards talking about how to succeed as an IG leader.

Children’s Privacy Failures Result in a £14.47m for Reddit

Safeguarding children’s privacy is a key enforcement priority for the Information Commissioner’s Office (ICO). It is also one of their duties under the Online Safety Act, alongside OFCOM.  

In March 2025, the ICO announced three investigations looking into how TikTok, Reddit and Imgur (an image sharing and hosting platform) protect the privacy of their child users in the UK. The investigations into Imgur and Reddit specifically focussed on how the platforms use UK children’s personal data and their use of age assurance measures. 

Article 8(1) of the UK GDPR states the general rule that when a Data Controller is offering an “information society services”  (e.g. social media apps and gaming sites) directly to a child, and it is relying on consent as its lawful basis for processing, only a child aged 13 or over is able to provide their own consent. For a child under 13, the Data Controller must seek consent from whoever holds parental responsibility. Article 8(2) further states: 

“The controller shall make reasonable efforts to verify in such cases that consent is given or authorised by the holder of parental responsibility over the child, taking into consideration available technology.” 

Earlier this month MediaLab.AI, Inc. (MediaLab), owner of Imgur, was fined £247,590 for processing children’s personal data in ways that breached the UK GDPR. Imgur’s terms of use stated that children under 13 could only use the platform with parental supervision. However, the ICO investigation found that, MediaLab did not implement any form of age assurance measures to determine the age of Imgur users and did not have measures in place to obtain parental consent where children under 13 used the platform. 

Yesterday the ICO announced that Reddit has now been fined £14.47m under the UK GDPR. The circumstance of the fine are very similar to MediaLabs. In summary: 

  • Reddit’s terms of service prohibited children under 13 years of age using its platform, but despite that it did not have measures in place to check the age of users accessing its platform until July 2025. 
  • The ICO’s estimates indicated that there were a large number of children under 13 on the platform and Reddit did not have a lawful basis for processing their personal data. 
  • Reddit had not completed a Data Protection Impact Assessment focusing on the risks of using children’s personal data before January 2025, even though children between 13 and 18 were allowed to use the platform. 
  • By using under 13-year-olds’ personal data without a lawful basis and without having properly considered the risks to children more generally, children were at risk of exposure to inappropriate and harmful content on Reddit’s platform. 

We are waiting for the ICO to publish the Monetary Penalty Notices in relation to Redditt and MediaLab. In the case of the latter, the ICO said at the time that it is still considering the redaction of personal and commercially confidential or sensitive information.  

The ICO’s investigation into TikTok is still ongoing. It is considering how the platform uses personal data of 13–17-year-olds in the UK to make recommendations to them and deliver suggested content to their feeds. This is in the light of growing concerns about social media and video sharing platforms using data generated by children’s online activity in their recommender systems, which could lead to them being served inappropriate or harmful content.  

The ICO is also investigating 17 other platforms, including Discord, Pinterest, and X, and has been in discussions with Meta and Snapchat over how they use children’s location data in their user map features. Watch this space! 

The Data (Use and Access) Act 2025, most of which came in to force earlier this month, explicitly requires those who provide an online service that is likely to be used by children, to take their needs into account when deciding how to use their personal data. 

Listen to the Guardians of Data Podcast for the latest news and views on data protection, cyber security, AI and freedom of information.   

This and other developments relating to children’s data will be covered forthcoming workshop, Working with Children’s Data.

Filming People in Public for Social Media: Is it time for a new law?

In the content creator world, filming people without their consent has become everyday behaviour. From TikTok nightlife clips to YouTube street pranks, millions of people capture others in public places and post the footage online. Whether it is for likes, shares or monetisation, this behaviour is not without consequences for the creators as well as the subjects. Over the weekend the BBC ran a story about two women whose interactions with ‘friendly strangers’ were uploaded to social media causing the women much alarm and distress. 

Dilara was secretly filmed in a London store where she works, by a man wearing smart glasses. The footage was then posted to TikTok, where it received 1.3 million views. Dilara then faced a wave of unwanted messages and calls. It later turned out that the man who filmed her had posted dozens of similar videos, giving men tips on how to approach women. Another woman,Kim, was filmed last summer on a beach in West Sussex, by a different man wearing smart sunglasses. Kim, who was unaware she was being filmed, chatted with him about her employer and family. Later, the man posted two videos online, under the guise of dating advice, which received 6.9 million views on TikTok and more than 100,000 likes on Instagram.  

The Law 

UK law does not expressly prohibit filming or photographing people in public places; unlike other jurisdictions such as UAE, Greece South Korea (see the recent case of the jailed American YouTuber). 
However, a number of legal issues arise when such filming occurs once the footage is uploaded and particularly where it is intrusive, monetised or causes harm.  

Although being in public generally reduces people’s privacy expectations, the UK courts have recognised that privacy rights can still arise in public places. Filming may become unlawful where it captures people in sensitive or intimate situations, such as medical emergencies, emotional distress or vulnerability.
The manner of filming, the focus on the individual, and the purpose of publication are all relevant factors in deciding whether the subject’s privacy has been violated.

Back in 2003, in a landmark decision, the European Court of Human Rights ruled that a British man’s right to respect for his private life (Article 8 of the European Convention on Human Rights) was violated when CCTV footage of him attempting suicide was released to the media. The case was brought by Geoffrey Peck, who, on the evening of 20th August 1995 and while suffering from depression, walked down Brentwood High Street in Essex with a kitchen knife and attempted suicide by cutting his wrists. He was unaware that he had been filmed by a CCTV camera installed by Brentwood Borough Council.  The court awarded Mr Peck damages of £7,800. In recent years, media coverage has highlighted situations where women were filmed on nights out and the footage uploaded online . While the filming occurred in public, the intrusive nature of the footage and the harm caused can give rise to privacy claims. 

Victims of secret filming have a direct cause of action in the tort of misuse of private information, developed by the courts in Campbell v MGN Ltd [2004] UKHL 22. This case was about the supermodel Naomi Campbell who successfully sued the Daily Mirror for publishing photos of her attending a Narcotics Anonymous meeting on The King’s Road in London. The court said that in such cases the test is whether the individual had a reasonable expectation of privacy in the circumstances, and if so, whether that expectation is outweighed by the publisher’s right to freedom of expression under Article 10 of the ECHR.  

Data Protection 

When a person is identifiable in a video, that footage constitutes personal data within the meaning of the UK General Data Protection Regulation (UK GDPR). Publishing such footage online involves ‘processing’ personal data and brings the UK GDPR’s obligations into play. The ‘controller’ has a wide range of obligations including having a lawful basis for processing, complying with the principles of fairness and transparency and respecting data subject (the victims’) rights which includes the rights to objection and deletion. 

Content creators and influencers sometimes assume they come under the ‘domestic purposes exemption’ in Article 2(2)(c) UK GDPR. However, this exemption is narrow and does not usually apply where content is shared publicly, monetised, or used to build an online following.  

Failure to comply with the UK GDPR could (at least in theory) lead to enforcement action by the Information Commissioner which could include a hefty fine. Article 82 of the UK GDPR gives a data subject a right to compensation for material or non-material damage for any breach of the UK GDPR. Section 168 of the Data Protection Act 2018 confirms that ‘non-material damage’ includes distress. 

Harassment  

Even where filming in public is lawful in isolation, repeated or targeted filming can amount to harassment or stalking. Section 1 of the Protection from Harassment Act 1997 prohibits a course of conduct that amounts to harassment and which the defendant knows or ought to know causes alarm or distress. Filming someone repeatedly, following them, or persistently targeting them for online content may satisfy this test. In 2024 a man was arrested by Greater Manchester Police on suspicion of stalking and harassment after filming women on nights out and uploading the videos online. The arrest was based not on public filming alone, but on the cumulative effect of the conduct and the harm caused. 

Individuals who discover that a video of them has been published online without consent can make a direct request to the creator to remove the footage, particularly where it causes distress or raises privacy concerns. If this is unsuccessful, most social media platforms offer reporting mechanisms for privacy violations, harassment, or non-consensual content. Videos are often removed by the platforms following complaints. Other civil remedies may also be available including defamation where footage creates a false and damaging impression.  

A New Law?

Despite the growing prevalence of filming strangers in public for social media content, there remains no single, specific piece of legislation in the UK to govern this area. Instead, there is a patchwork of laws including privacy law, the UK GDPR and harassment legislation; to name a few. While these laws can sometimes provide protection, they were not designed with the modern social media ecosystem in mind and often struggle to respond effectively to the scale, speed, and commercial incentives of online content creation.

Furthermore, civil actions are expensive and it is difficult to get Legal Aid for such claims. Victims are left to navigate for themselves complex legal doctrines such as ‘reasonable expectation of privacy’ or ‘lawful basis for processing’. While police involvement may be appropriate in extreme cases, many videos fall short of criminal thresholds yet still cause significant distress and reputational damage.

Is it time for a new, specific statutory framework addressing non-consensual filming (and publication) in public spaces? Such a law could provide clearer boundaries, simpler remedies and more accessible enforcement mechanisms, while balancing legitimate freedoms of expression and journalism. Let us know your thoughts in the comments section.

This topic was discussed in detail in Episode 6 of the Guardians of Data Podcast (see below)

Scope of the GDPR: ICO Wins Clearview Appeal  

The Information Commissioner has won his appeal (to the Upper Tribunal) against the First-tier Tribunal (FTT) decision involving Clearview AI Inc.  

Clearview is a US based company which describes itself as the “World’s Largest Facial Network”. Its online database contains 20 billion images of people’s faces and data scraped from the internet and social media platforms all over the world. It allows customers to upload an image of a person to its app; the person is then identified by the app checking against all the images in the Clearview database. The appeal raised the issue of the extent to which processing of the personal data of UK data subjects by a private company based outside the UK is excluded from the scope of the GDPR, including where such processing is carried out in the context of its foreign clients’ national security or criminal law enforcement activities. 

Background 

In May 2022 the ICO issued a Monetary Penalty Notice of £7,552,800 to Clearview for breaches of the UK GDPR including failing to use the information of people in the UK in a way that is fair and transparent. Although Clearview is a US company, the ICO ruled that the UK GDPR applied because of Article 3(2)(b) (territorial scope). It concluded that Clearview’s processing activities “are related to…the monitoring of [UK resident’s] behaviour as far as their behaviour takes place within the United Kingdom.” The ICO also issued an Enforcement Notice ordering Clearview to stop obtaining and using the personal data of UK residents that is publicly available on the internet, and to delete the data of UK residents from its systems.  

In October 2023, the FTT overturned the ICO’s enforcement and penalty notice against Clearview. It concluded that although Clearview did carry out data processing related to monitoring the behaviour of people in the UK (Article 3(2)(b) of the UK GDPR), the ICO did not have jurisdiction to take enforcement action or issue a fine. Both the GDPR and UK GDPR provide that acts of foreign governments fall outside their scope; it is not for one government to seek to bind or control the activities of another sovereign state. However the Tribunal noted that the ICO could have taken action under the Law Enforcement Directive (Part 3 of the DPA 2018 in the UK), which specifically regulates the processing of personal data in relation to law enforcement. 

The Upper Tribunal Judgement  

The Upper Tribunal allowed the appeal, set aside the decision of the FTT and remitted the matter to the FTT to decide the substantive appeal on the basis that the Information Commissioner had jurisdiction to issue the notices. It also decided that the FTT was right to find that Clearview’s processing fell within the territorial scope of the GDPRs, albeit that it differed in its reasoning. 

In its judgment, the Upper Tribunal ruled  that: 

(1) The words “in the course of an activity which falls outside the scope of Union law” in Article 2(2)(a) of the GDPR (which provides for an exclusion from the material scope of the GDPR) refer only to those activities in respect of which Member States have reserved control to themselves and not conferred powers on the Union to act, and not to all matters without the competence of the Union (as the ICO argued) or to the activities of third parties whose processing “intersects” with their clients’ processing in the course of “quintessentially state functions” which would offend against comity principles (as Clearview argued); 

(2) The words “behavioural monitoring” in Article 3(2)(b) are to be interpreted broadly, as a response to the challenges posed by ‘Big Data’ in the digital age, and they can encompass passive collection, sorting, classification and storing of data by automated means with a view to potential subsequent use, including use by another controller, of personal data processing techniques which consist of profiling a natural person. “Behavioural monitoring” does not require an element of active “watchfulness” in the sense of human involvement;  

(3) The words “related to” in Article 3(2)(b) of the GDPR, as applied to Article 3(2)(b), have an expansive meaning, and apply not only to controllers who themselves conduct behavioural monitoring, but also to controllers whose data processing is related to behavioural monitoring carried out by another controller. 

Data protection practitioners should read the judgement of the Upper Tribunal as it clarifies the material and territorial scope provisions of the UK GDPR. This and other GDPR developments will be discussed in our forthcoming GDPR Update workshop.  

Clearview AI Wins Appeal Against GDPR Fine 

Last week a Tribunal overturned a GDPR Enforcement Notice and a Monetary Penalty Notice issued to Clearview AI, an American facial recognition company. In Clearview AI Inc v The Information Commissioner [2023] UKFTT 00819 (GRC), the First-Tier Tribunal (Information Rights) ruled that the Information Commissioner had no jurisdiction to issue either notice, on the basis that the GDPR/UK GDPR did not apply to the personal data processing in issue.  

Background 

Clearview is a US based company which describes itself as the “World’s Largest Facial Network”. Its online database contains 20 billion images of people’s faces and data scraped from publicly available information on the internet and social media platforms all over the world. It allows customers to upload an image of a person to its app; the person is then identified by the app checking against all the images in the Clearview database.  

In May 2022 the ICO issued a Monetary Penalty Notice of £7,552,800 to Clearview for breaches of the GDPR including failing to use the information of people in the UK in a way that is fair and transparent. Although Clearview is a US company, the ICO ruled that the UK GDPR applied because of Article 3(2)(b) (territorial scope). It concluded that Clearview’s processing activities “are related to… the monitoring of [UK resident’s] behaviour as far as their behaviour takes place within the United Kingdom.” 

The ICO also issued an Enforcement Notice ordering Clearview to stop obtaining and using the personal data of UK residents that is publicly available on the internet, and to delete the data of UK residents from its systems. (see our earlier blog for more detail on these notices.) 

The Judgement  

The First-Tier Tribunal (Information Rights) has now overturned the ICO’s enforcement and penalty notice against Clearview. It concluded that although Clearview did carry out data processing related to monitoring the behaviour of people in the UK (Article Art. 3(2)(b) of the UK GDPR), the ICO did not have jurisdiction to take enforcement action or issue a fine. Both the GDPR and UK GDPR provide that acts of foreign governments fall outside their scope; it is not for one government to seek to bind or control the activities of another sovereign state. However the Tribunal noted that the ICO could have taken action under the Law Enforcement Directive (Part 3 of the DPA 2018 in the UK), which specifically regulates the processing of personal data in relation to law enforcement. 

Learning Points 

While the Tribunal’s judgement in this case reflects the specific circumstances, some of its findings are of wider application: 

  • The term “behaviour” (in Article Art. 3(2)(b)) means something about what a person does (e.g., location, relationship status, occupation, use of social media, habits) rather than just identifying or describing them (e.g., name, date of birth, height, hair colour).  

  • The term “monitoring” not only comes up in Article 3(2)(b) but also in Article 35(3)(c) (when a DPIA is required). The Tribunal ruled that monitoring includes tracking a person at a fixed point in time as well as on a continuous or repeated basis.

  • In this case, Clearview was not monitoring UK residents directly as its processing was limited to creating and maintaining a database of facial images and biometric vectors. However, Clearview’s clients were using its services for monitoring purposes and therefore Clearview’s processing “related to” monitoring under Article 3(2)(b). 

  • A provider of services like Clearview, may be considered a joint controller with its clients where both determine the purposes and means of processing. In this case, Clearview was a joint controller with its clients because it imposed restrictions on how clients could use the services (i.e., only for law enforcement and national security purposes) and determined the means of processing when matching query images against its facial recognition database.  

Data Scraping 

The ruling is not a greenlight for data scraping; where publicly available data, usually from the internet, is collected and processed by companies often without the Data Subject’s knowledge. The Tribunal ruled that this was an activity to which the UK GDPR could apply. In its press release, reacting to the ruling, the ICO said: 

“The ICO will take stock of today’s judgment and carefully consider next steps.
It is important to note that this judgment does not remove the ICO’s ability to act against companies based internationally who process data of people in the UK, particularly businesses scraping data of people in the UK, and instead covers a specific exemption around foreign law enforcement.” 

This is a significant ruling from the First Tier Tribunal which has implications for the extra territorial effect of the UK GDPR and the ICO powers to enforce it. It merits an appeal by the ICO to the Upper Tribunal. Whether this happens depends very much on the ICO’s appetite for a legal battle with a tech company with deep pockets.  

This and other GDPR developments will be discussed by Robert Bateman in our forthcoming GDPR Update workshop.  

Monitoring Staff Use of Social Networks: The Human Rights Implications

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According to a recent FOI request made by BBC Radio 5 live, last year there was a rise in the number of UK council staff suspended after being accused of breaking social media rules. Many employers, both in the public and the private sector, now monitor staff use of social media within the office environment. The possibilities are endless but care must be taken not to overstep the legal limits.

All employers have to respect their employees’ right to privacy under Article 8 of the European Convention on Human Rights (ECHR).  This means that any surveillance or monitoring must be carried out in a manner that is in accordance with the law and is necessary and proportionate (see Copland v UK (3rd April 2007 ECHR))

A January 2016 judgment of the European Court of Human Rights show that a careful balancing exercise needs to be undertaken when applying the law (Barbulescu v Romania (application 61496/08). In this case, the employer had asked employees such as the applicant to set up Yahoo! messenger accounts for work purposes. Its policies clearly prohibited the use of such work accounts for personal matters. The employer suspected the applicant of misusing his account, so it monitored his messages for a period during July 2007 without his knowledge.

The employer accused the applicant of using his messenger account for personal purposes; he denied this until he was presented with a 45-page printout of his messages with various people, some of which were of an intimate nature. The employer had also accessed his private messenger account (though it did not make use of the contents).

The applicant was sacked for breach of company policy. When he challenged his dismissal before the courts, his employer relied on the print out of his messages as evidence. He argued that, in accessing and using those personal messages, the employer had breached his right to privacy under Article 8 ECHR.

The Court accepted the applicant’s privacy rights were engaged in this case. However the employer’s monitoring was limited in scope and proportionate. It is reasonable for an employer to verify that employees are completing their professional tasks during working hours. Key considerations were:

  • The emails at the centre of the debate had been sent via a Yahoo Messenger account that was created, at the employer’s request, for the specific purpose of responding to client enquiries.
  • The employee’s personal communications came to light only as a result of the employer accessing communications that were expected to contain only business related materials and had therefore been accessed legitimately.
  • The employer operated a clear internal policy prohibiting employees from using the internet for personal and non-business related reasons.
  • The case highlights the need for companies to have a clear internet and electronic communications policy and the importance of such a policy being communicated to employees.

When monitoring employees, the employer will inevitably be gathering personal data about employees and so consideration also has to be given to the provisions of the Data Protection Act 1998 (DPA). The Information Commissioner’s Office’s (ICO) Employment Practices Code, includes a section on surveillance of employees at work. In December 2014, Caerphilly County Borough Council signed an undertaking after an ICO investigation found that the Council’s surveillance of an employee, suspected of fraudulently claiming to be sick, had breached the DPA.

Compliance with the DPA will also help demonstrate that the surveillance is human rights compliant since protection of individuals’ privacy is a cornerstone of the DPA. Of course the data protection angle will bite harder when the new EU Data Protection Regulation comes into force in 2018. Failure to comply could lead to a fine of up to 20 million Euros or 4% of global annual turnover.

Act Now has a range of workshops relating to surveillance and monitoring both within and outside the workplace. Our products include a RIPA polices and procedures toolkit and e-learning modules.

Data Protection, the Law and Social Media: Keeping Your Boat Afloat

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Paul Gibbons writes…

Social media have been good for me. Without my FOIMan blog and Twitter feed, I would never have been asked to deliver training for Act Now Training, or indeed offered many of the wonderful opportunities that have come my way in the last few years. I’ve made a whole new career off the back of them. Not only has my profile been raised by my use of these tools, but I’ve been able to learn from a whole range of knowledgeable people online – expanding my awareness and horizons way beyond anything I’d have considered possible just five years ago.

But even if I remove my FOIMan cape for a moment, social media has had a significant impact on me. I keep in touch with old friends via Facebook. My CV is widely available to hundreds of business contacts via LinkedIn. Before I book a holiday or dine out, I check Trip Advisor. If I want to know how decisions are made by my local council or indeed the Ministry of Justice, I can submit an FOI request via WhatDoTheyKnow. With an election on the way I can find out my MP’s voting record by consulting TheyWorkForYou, and perhaps write to them to ask what their position is on a particular issue. If I feel particularly strongly about that issue I might add my details to an online petition. Social media in their many forms pervade our lives. Many of us would be lost without them.

And it’s not just individuals that are becoming reliant on it. These tools provide novel ways to engage with the people who use them. Businesses have not been slow to exploit them for marketing and public relations purposes. Politicians – often accused of being remote from their electorate – have, with varying success, used them to speak directly to parts of that group. Academics conduct surveys, then disseminate their research, both via social media. A recent study found that 40% of students use social media as their primary form of communication with lecturers. Journalists also use it to research and report on stories. No television broadcast is complete these days without a hashtag allowing the viewers to interact. The police have used them to investigate or prosecute criminal acts. Central government encourages civil servants to embrace Twitter as a tool to communicate about public policy and gain insights into people’s reaction to it. Local government too, has found social media a productive way to interact with local citizens. We’re only beginning to see the ways in which social media can benefit our businesses, government, work and lifestyles.

However, as with most things, there are downsides. There are the trolls lurking not under a bridge but under assumed names on Twitter, ready to spread their malice. It’s easy to get carried away and post in haste – repenting at our leisure. Just as social media can make careers and boost reputations, it can destroy them overnight. It empowers individuals, and many companies and public bodies have been keen to use it to give a human face to their corporate image. But those same individuals can use it intentionally or not to disfigure that public face. They can disclose confidential information more easily, expose the business to liability for breach of copyright or defamation, and breach the Data Protection Act by discussing personal matters relating to clients, customers or colleagues.

Don’t believe me? Take the social worker who posted information on Facebook about a child protection court case she was involved in, potentially allowing the family to be identified. Or the companies at the centre of Twitter storms. Or sued for using a photographer’s images without permission. In a recent post on my FOIMan site, I highlighted an academic who posted internal correspondence relating to an FOI request on WhatDoTheyKnow, in the process potentially damaging the institution’s reputation, relationships with their colleagues, and almost certainly causing their employer to breach the Data Protection Act’s first data protection principle (to handle personal data fairly and lawfully) in the process. Even those organisations whose employees should know better have had to take disciplinary action: between 2009 and 2014, 519 disciplinary actions were taken against police officers for social media related transgressions, and the Crown Prosecution Service reported that nine of its staff had been disciplined for similar reasons over that period. Not for nothing has the Ministry of Defence warned its employees that “Loose Tweets Sink Fleets”.

The temptation in the face of this litany of institutional and individual disaster is to adopt the ostrich position. Ban your employees from using social media altogether. Avoid their corporate use. This won’t work. For a start, you will miss out on all the benefits highlighted at the start of this piece and more. But besides, it’s way too late for that. Pandora is not just out of the box but is running the show. You could impose contractual obligations on your staff requiring them not to use social media, or at least not to discuss their work there. If you do though you may find yourself losing staff who choose to work for a more progressive employer. In any case, it may be too late, as the Kent Police and Crime Commissioner discovered when she appointed a 17 year old to the post of Youth Police and Crime Commissioner.

You can’t stop your customers or the public writing about you on social media, but if you’re not using it, you’ll only find out what they’re saying about you too late. You’ll have no way to react to adverse comment online save through the traditional media which may not go to press until your business has collapsed clothed only in the tatters of its reputation.

So if you can’t avoid the risks of social media altogether, what can you do? The next best thing is to mitigate those risks. Like any other tool that you use, you need policies setting out acceptable use. You need to secure your most valuable and sensitive information. You need to raise awareness of your policies and legal restrictions so that your employees understand what they are allowed (or even encouraged) to do using social media, and also what they shouldn’t do – and what the consequences of doing it will be.

Where can you find out more about the risks that social media poses to your organisation? Or indeed the opportunities it offers? What should you include in a social media policy? Do you need to keep records of your social media use, and if so, how?

Well, social media itself will offer many solutions if you’re brave enough to jump in. But if you want a guide, my new training course on Data Protection, the Law & Social Media will provide answers to the questions above, and will point you to resources to help your organisation and its employees use social media effectively whilst avoiding the pitfalls. The course runs for the first time in Manchester on 20 April, and in London on 22 April 2015, and can also be run as an in-house course for your Data Protection, Communications and other staff. Get in touch with Act Now Training now for more details or book through their website.

How not to write a social media statement.

It’s the coming thing – having a social media policy. Cases such as Wetherspoons vs Preece illustrate the value of having one but there’s good ‘uns and inevitably bad ‘uns.

A family member recently accepted a job in a ski-ing company and they included the following in their T & Cs about Social Media. What do you think of it?

So a young person who’s going out with his mates for a few beers after work needs to seek legal advice before letting alcohol pass his lips in case he says something he wasn’t planning to say about his employer.

You can imagine two young thrusting lawyers sitting in  a bar.

  • “What’s your line then?”
  • “I look after unwittingly defaming people on social media”
  • “Business good?”
  • “Never better”

Do you commit libel? Sounds a bit strong.., Do Drivers commit speed? Do shoplifters commit shoplifting.

How can you tell you’ll unwittingly do something? Or to  really screw it up how can you tell you’ll wittingly do something?

You can’t express your views while you are employed by this company (but it’s only seasonal so by Easter you can say what you want again (Err… no. This contract forbids you from speaking out for the remaining 75 years of your life (my family member is one of those lucky people who will live to be 100)

The final sentence is just plain bizarre. I’d better not sign this contract in case I’m in breach of it…

Who writes this rubbish? I know, of course, but I can’t possibly tell you as I might unwittingly say something I might regret for nearly a century.