Kids, Privacy and Social Media

In mid-December 2002 Mrs Marie Hosking, recently separated from her broadcaster husband, was photographed walking her children down a street in Newmarket, a suburb in Auckland. The photographer in question was one Simon Runting who had been commissioned by a woman’s magazine to take the photos for a proposed article. Both Mr and Mrs Hosking were very protective of the privacy of their children. They were entitled to their privacy. So Mr and Mrs Hosking commenced proceedings.

First they had to establish that there was a cause of action – a tort or civil wrong based around a right to privacy.

Secondly, if such a cause of action was available, did the circumstances of the case fall within it which would allow the Court to provide a remedy.

A full Bench of the New Zealand Court of Appeal agreed that New Zealand law recognised a tort of invasion of privacy. Tipping J expressed the tort in summary as follows:

I would therefore summarise the broad content of the tort of invasion of privacy in these terms. It is actionable as a tort to publish information or material in respect of which the plaintiff has a reasonable expectation of privacy, unless that information or material constitutes a matter of legitimate public concern justifying publication in the public interest. Whether the plaintiff has a reasonable expectation of privacy depends largely on whether publication of the information or material about the plaintiff’s private life would in the particular circumstances cause substantial offence to a reasonable person. Whether there is sufficient public concern about the information or material to justify the publication will depend on whether in the circumstances those to whom the publication is made can reasonably be said to have a right to be informed about it. (Hosking v Runting [2005] 1 NZLR 1 at para [259]

However, although the Hoskings were successful in establishing that there was a right to privacy which could be invaded, the Court held that in this case there was no expectation of privacy and they failed to establish a breach of privacy. As Tipping J succinctly put it

I am of the view that neither Mr and Mrs Hosking, nor the children themselves, had a reasonable expectation of privacy in the photographs in question. They were taken in a public place. There is no evidence which satisfies me that publication would be harmful to the children, either physically or emotionally. There is, in my view, no greater risk to the safety of the children than would apply to a photograph of any member of society taken and published in a similar way. Any other conclusion would be based on speculation rather than reasonable inference from evidence. I doubt whether many members of society would regard the Hoskings as having expectations of privacy in current circumstances in respect of their children. I cannot accept that any such expectation as might be held would be reasonable in all the circumstances. I cannot see how it can reasonably be said that publication of these photographs should be regarded as likely to cause substantial offence or other harm to a person of reasonable sensibility. (Hosking v Runting [2005] 1 NZLR 1 at para [260]

The facts of Hosking’s case were clear and not in dispute and involved a claim against another actor for privacy infringement – the photographer was a person who was entering what Hosking claimed was a zone of privacy for the children and intended, by publication of the photos, to extend that zone to a wider audience. The case fell upon the fact that in a public place – a street – there is no expectation of privacy.

The Internet and Social Media present a set of circumstances which challenge the use and control of personal information.

One phenomenon that has attracted some publicity is that of parents who place details of their family life on-line and especially include photographs of their children. Now this seems to run entirely counter to the approach of the protagonists in Hosking v Runting who wanted to keep their children OUT of the public eye.

Two recent articles highlight the issue.  One – “The Rise of the Instamums”  is about a number of individuals who place carefully selected and curated photos of their children online and who manage to make a bit of money in the process with endorsements and product placement. The other, from Australia – “How Roxy Jacenko Inadvertently Became a Pin-Up Girl for Oversharing on Social Media” – demonstrates the dangers that may arise.

Like anything that is posted on social media, once it is there, it is there – the concept of the document that does not die.

The other issue is that once content has been posted, one loses control of it, so that it may be modified and doctored, as was the case with images of Ms Jacenko’s daughter Pixie.

Ms Jacenko, a PR consultant, has been criticised for commercialising her child, but apart from that there seem to be a number of other issues which arise particularly in the context of privacy which need to be considered.

Control and privacy is particularly relevant. Privacy is all about what information or aspects of one’s personal life one is prepared to disclose or share with others. There may be a number of reasons for disclosing such information, much of it to do with self-image, definition, how one wants to be viewed in society and the like. Social media may interfere with that significantly. Images of children, posted for the purposes of pride or as a form of journal of a child’s progress  may be hi-jacked for nefarious purposes (or worse). They may serve to identify a child and possibly provide associated information that may help to locate a child who may be of interest to one who, shall we say, has other than the best interests of the child at heart.  And then the photos can be used for revenge or harassment or abuse.

One hesitates to draw an analogy between the on-line and the real word – they are so different – but it has been observed that posting pictures of children online is the same as walking down a street passing out those pictures to complete strangers. When viewed in that light the posting of photos of children online takes on a different and indeed somewhat sinister dimension.

A propos of the “document that does not die” life for all of us goes on. The carefully curated photos of a child posted by a proud parent may, in a few year’s time, become a considerable source of embarrassment as the child grows into maturity. The photos could become the source of taunts, shaming or cyberbullying. It is doubtful that the target of such behaviour would relish the presence of his or her pictures on-line.

Given the ability to search out information within this everlasting informational context, it may well be that New Zealand law will have to develop a “Right to be Forgotten” to enable these kids as adults to attend to their own self-definition.

Privacy for children is something about which  Mr and Mrs Hosking were concerned. The Court held that there was no expectation of privacy in a public street. Likewise, there is no expectation of privacy on a social media site. Perhaps kids should have that private space within which to grow and develop. And then they can make the choice about whether photos of them remain in the family album at home or online.

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