No privacy in Tweets

Publicly accessible postings on Twitter and other social media are not private, according to rulings by the Press Complaints Commission.

The rulings were made following complaints against two national newspapers: Baskerville v Daily Mail and Baskerville v Independent on Sunday.

The complaints

Sarah Baskerville, a middle-ranking civil servant at the Department for Transport, complained that the publication by the Daily Mail of her postings on Twitter were an intrusion into her privacy. The Daily Mail had reproduced tweets by Ms Baskerville in which she criticised aspects of her job and her feelings towards her work, including the struggles of working with a wine-induced hangover. The article identified other tweets that were political in nature, including comments on an MP, the re-tweet of a Labour MP's attack on government spin and her personal acquaintance of a prominent MP's wife.  The full text of the article is here: "Oh, please, stop this twit from Tweeting, someone".

Ms Baskerville made a separate complaint about an article in The Independent on Sunday, published the day after the Mail's article, which highlighted a number of her tweets and discussed the Mail's criticism of her: "The Hounding of Baskerville".  This article was accompanied by a photograph of Ms Baskerville taken from her Flickr photo-stream and included comments taken from Ms Baskerville's blog.

At the time the article was published Ms Baskerville's Twitter stream was not locked. This meant that tweets posted by her could be viewed by anyone who used Twitter and were not limited to her followers, of which there were in any event some 700.  Similarly, neither Ms Baskerville's blog nor her Flickr page were protected with privacy settings.

Ms Baskerville argued that her activities on Twitter and other social networking sites were private. Notwithstanding that anyone could view the information she posted online, she maintained she still had a reasonable expectation that her messages would be published only to her followers. In support of her case she pointed to the fact that non-followers would only find her account by actively searching for it and even then would not see the full context of her messages. She also noted that both her Twitter stream and her blog carried clear disclaimers that the views expressed were personal opinions and were not representative of her employer.

The papers argued that the publication of Ms Baskerville's comments about many aspects of her life, including her job, which she had openly posted online and could be read by anyone, was not an unjustified interference with her privacy. Furthermore, the comments were published in the context of an ongoing debate around the use of social media. It was legitimate for the papers to consider how people in Ms Baskerville's position should control their online activities and how this could reflect on their judgement particularly as civil servants are required by the civil service code not to call into doubt the impartiality of the service through their public statements.

The PCC's Adjudication

The PCC dismissed Ms Baskerville's complaint. Although the information was originally intended for a smaller audience, its republication by the papers did not constitute an intrusion of her privacy.

In the opinion of the PCC, the information published by the newspapers was not intimate personal detail about Ms Baskerville but related directly to her professional life as a civil servant.  A key consideration in the PCC's assessment was the publicly accessible nature of the information – for which Ms Baskerville was responsible. Although she had "only" 700 followers, the potential audience was much greater. A notable feature of Twitter is that tweets can be re-tweeted (republished) to a much larger audience.

The PCC was also influenced by Ms Baskerville's public position.  Although the coverage caused her regrettable distress, it did not unjustifiably intrude into her private life. Equally, the publication of what the PCC described as an innocuous picture of Ms Baskerville and comments from her blog, which were not of an intimate nature, did not constitute unjustified intrusion.

Comment

The decision is an application of the most recent guidance on the use of social media contained in the January 2011 edition of the Editors' Codebook. The Codebook stresses that material published without consent can raise privacy concerns, even if freely available online, and that republication of 'publicly available' personal information is not inherently justified. Equally, it is not prohibited and it is for the journalist or editor to consider the particular circumstances of each case. Before publication journalists are advised to consider: (1) how personal is the information in question; (2) how accessible is the material to third parties;  (3) what steps the individual had taken to restrict access to an online profile and  whether the individual knew that the material was being used more widely; (4) whether the person was responsible for uploading it; and (5) what public interest there is in publishing it.  Special caution is urged where the information could concern a child under the age of 16.

The adjudications in Ms Baskerville's complaints demonstrate that the Commission is taking a pragmatic and sensible approach to the application of this guidance. The information and pictures were not of an intimate nature, they had not been obtained covertly, and, as the papers pointed out, Ms Baskerville was not a person who was incapable of realising the consequences of making her life so public. Given Ms Baskerville's position and the content of her postings, there was a public interest in including them in the press coverage.

See further sections 11.3 and 5.9 of the Privacy Law Handbook

(Originally blogged by Bríd Jordan)