Charlie Sosna
In this episode, what rights does the parent have to object to their co-parent oversharing details of their child’s life on social media and how do you tackle the most serious and criminal breaches of privacy, such as revenge porn?
Hello and welcome to the Mishcon Academy Digital Sessions podcast. I’m Charlie Sosna, a Partner in the Private Department at Mishcon de Reya and I’m joined remotely by colleagues Emma Woollcott, Head of the Reputation Protection Group and Claire Yorke, a Legal Director in our Family Department.
So, the first issue I’d like to come to is about parents sharing images of their children on social media and you know, this can be a disagreement between parents in a stable relationship as to what approach to take on that.
Claire, is this something you see frequently when you’re having conversations with clients during a separation?
Claire Yorke
Absolutely. It’s not just where parties maybe make a living out of posting pictures on social media and an increasing number of people do that but it’s amazing how within a couple, how many people have very polarised views on how much should be online and whilst they may be happy to just let things be during the course of a relationship, when that relationship is broken down it’s very important to them that their feelings on it are taken into account.
But where a child’s image has already been widely published with both parents’ consent, that doesn’t mean there’s been blanket consent and there’s nothing stopping either parent from withdrawing their consent at any point. It’s maybe more difficult if you have always consented to a child’s image being on social media if one parent earns an income from it and it’s a similar project or picture and there’s the argument the child is already identifiable but it doesn’t mean that there is automatic consent. If the parties can’t agree, as parents, and both parents’ opinion is important, then the question for the Court is exactly the same as where images have been published and that’s what’s in the child’s best interests and what’s in the child’s welfare. The extent of any benefit or detriment for the future publication for the child, the Court will look at the nature of it, is it a family WhatsApp group or a limited Instagram account where there is a benefit for the child’s wider family being able to see images of that child, to keep grandparents up to date who may live abroad, for example. Or is it where some parents actually communicate, when they’ve separated, via social media accounts and there are apps to help parents co-parent. Well, that in itself requires a degree of images and information being uploaded, although to a secure space but we need to think about it in that circumstance as well.
Where a post is being seen by the world and it’s not in those more private areas, then it can be less easy to justify and one of the things the Court will look at, as well as all the circumstances in particular, is the age of the child. There’s one Judge that rather memorably said in a case where a parent posted a video of their infant child being removed by Social Services, saying that the reality is that although anyone can identify a baby by its name, it was in that Judge’s view almost impossible, unless you are a parent, to distinguish between the photograph of a very minor child between the photo of another very minor child and therefore a Judge may take a different view, as they would do if a child was eight, ten years old and far more easily identifiable.
Charlie Sosna
I mean, I’m not sure that’s something I could agree with but…
Claire Yorke
No, me neither.
Charlie Sosna
But putting that to one side…
Claire Yorke
That’s all taking into account how parents feel about it and parents’ consent and how what their feelings may be, after the breakdown of the marriage or relationship, about their children’s images being used. You will get to an age where actually it’s the child’s view that the Court’s going to be listening to as well. There’s no set age for when that will happen but many parents out there would probably accept, although maybe only privately, that their teenage children know far more about tech and social media platforms than they do and actually they’re the ones posting on social media and they’re the ones creating an image for themselves and whilst, as parents, of course you have opinions and a right to parent and a responsibility to parent, where children have a view on their social media platform and it is a dispute between the parents and there’s differing views, the Court will take into account a child’s view when they are in teenage years.
Charlie Sosna
That all makes perfect sense and even with someone with a four year old that’s already taking selfies all over my phone, you know, give her a few more years and I’m sure she’ll be wanting to post them to Instagram or whatever the social media fad is in a few years’ time.
Emma, what do you see from your perspective?
Emma Woollcott
I think we’re going to come into some very interesting challenges and battlegrounds in years to come because, as Claire said, young people now, children and young people, are very tech-savvy and they’re also quite interested in curating their online image. So, following on from the dispute you might have between two or more parents about sharing of private information online, we’re also going to have competing interests or expressions and complaints coming from children. It may very well be that as children reach majority or they get into their teenage years and they see the extent to which private information, photographs of them running around the garden, that sort of thing, have been shared, potentially by Luddite parents or just by over-zealous excited parents, they make take a view that actually that information being available to every future employer, every future boyfriend or girlfriend, is not appealing to them and there may be a conflict between the children and the parents and the children may rightly say, ‘Well, I don’t want this to remain online. I would rather the pictures that you showed off when I was young and a bit embarrassing are withdrawn’, and parents may just say that actually that’s not what they want to do. So, I think we are going to get into some interesting territory where the rights and interests of children compete with the rights of expression of parents and you know, it’s not unforeseeable that there may be cases and conflicts around this issue with young people saying, ‘You know, you’ve intruded upon my right to respect for a private life. There’s no public interest in that disclosure. If you won’t take it down, I’ll force the Court to take it down and/or you’ll pay me damages for continuing to publish’.
Charlie Sosna
I mean, this seems kind of terrifying as a parent, doesn’t it? And I think there therefore seems to be so many different angles to where there are huge pitfalls here so you’ve got whilst the child is younger, you’ve got the potential dispute between co-parents as to the approach to putting that child on social media and then you’ve got a second degree, which is as the child gets older, them taking their own approach and potentially criticising the parents as to what they’ve done in publishing things on social media. But if those parents are not united in their approach that seems like an even bigger potential disaster where the child is criticising the approach of the parents and the parents aren’t on the same page.
Emma Woollcott
I agree, it’s a complete minefield. There’s a lot being talked about now about sharenting, parents oversharing on social media, and if parents are aligned in the level of sharing of private information it’s going to be even harder for them to answer a claim by an adolescent or a young person who says, ‘Actually, I don’t agree with what you have published about me as I’ve grown up and before I was able to exercise my consent’. It’s not the case that you have no right to privacy just because you’re too young to exercise it. So, I think it is going to lead to some very interesting conversations. The internet has a very long history and a very long memory so parents who are – whether they’re doing it unilaterally or together – parents who are sharing information about their children need to be very careful about what they share and try to view it through the lens of their child as they mature and what they would want to be shared in the public domain because once information’s published online, it’s very, very difficult to get back.
Charlie Sosna
It feels to me therefore the safe position would be you would say to clients, ‘Just don’t share. Don’t put the children on social media’ but actually, for a lot of our clients, their income comes from that social media platform and they kind of need to – it’s the wrong word to say, leverage the children – but that is part of the attractive package for their followers. So, you can’t even just take a hard-line rule of saying, ‘Just don’t put any photos on’, because that also might not be in the child’s best interest long-term. Potentially.
Emma Woollcott
Because the parents need the income.
Charlie Sosna
Yeah.
Emma Woollcott
I completely agree and I suspect if there were a case involving a child complaining about the misuse of their private information online or the abuse of their whole childhood online, I suspect that you’re right that a Court would take a very dim view if the justification for breaching their privacy or if the parents’ motivation was a financial one.
Charlie Sosna
Mmm. And, on a very different, very different topic, but one that is also I think, can be at the forefront of clients’ minds when they are thinking about going through a separation is some of the more per… like, the one big concern to them is their children and the impact on the children and all of those aspects but the other is, you know, they will have potentially shared some very intimate and private things with their partner that they are worried might in the heat of battle of the separation come out and obviously I’m talking about revenge porn, which just seems to be coming more of an issue at the moment. What is the legal position with that now?
Emma Woollcott
Unfortunately, there’s not one single criminal offence in England and Wales that captures the taking, making and sharing of intimate images without consent. Instead, there’s a wide range of criminal and civil offences that have developed over time in a kind of piecemeal fashion, some of which have existed before the rise of the internet and the use of smartphones so, arguably, they are not fit for purpose anymore. But there have been recent additions to those laws and there are proposed changes. So, it’s a bit of a minefield but generally speaking, it is a criminal offence to share intimate images. The revenge porn laws from 2015, which makes it criminal to share private sexual materials either photos or videos of another person without their consent, with the purpose of causing embarrassment or distress. Anyone who’s found guilty of revenge porn can be imprisoned for up to two years and can be fined also.
There are other related civil and practical things that people can do if they are concerned about, or have experienced, the sharing of intimate images. So, of course the sharing of intimate images comes within the general law of privacy so, the right to respect for a private life, sexual life, the image is taken in the context of that sexual life. There are also lots of things that can be done practically if your images are published online or on sharing websites. You can seek a criminal prosecution. You certainly should be considering reporting the matter to the Police. At the same time, you can report the publication of those images to the platform or app where the images are being shared and ask them to be immediately removed. Many of the major platforms – Tumblr, Twitter, Pornhub – have taken huge steps in recent years to improve the monitoring and removal of revenge porn and intimate images and there are several organisations and charities that have resources that can provide support, including a very helpful Government Revenge Porn Helpline. So, it’s revengepornhelpline.org.uk which has a wealth of information on the offences and how to report abuse and where you can go for help.
Where we come in often is that there are civil claims related to that. So, in the right circumstances you may have a right to bring proceedings for the damage and distress caused by the exposure of private information and the publication of private information. And if a threat is made but not yet actioned, you may be able to seek an injunction to prevent the publication of private information. So, where intimate images are used as a weapon in family proceedings or in divorce or separation, it is important to act quickly to try to avoid them being put in the public domain and/or to stop them being disseminated widely if they are published.
Charlie Sosna
I suppose that’s one of the things isn’t it? Once the horse has bolted it’s very difficult. You can do what you can to take it back but people can’t unsee what they’ve seen and the damage can be done to reputations so, sort of that context of private sexual material seems quite crucial to determining the legal side of things, is it?
Emma Woollcott
I imagine though that it comes up often in family proceedings and divorce proceedings where parties are keen to ensure that undertakings are given in the context of the disputes and in the proceedings to delete and/or return intimate images. Is that the case, Claire?
Claire Yorke
Yeah it is something that we need to address and it can be dealt with in the context of dealing with general confidential material you know, anything that was generated during the course of a relationship, ensuring that it is deleted, that copies – because everything is backed up nowadays – that copies are deleted and undertakings are given that that is done. Where, even if those undertakings have been discussed maybe they’ve not been put in place yet, or people hadn’t thought it was going to be an issue because it may have been an image years ago that somebody’s forgotten about or they didn’t think that their ex-spouse was the kind of person that would release it, the Family Courts can actually be a real help in these kind of cases and they are increasingly robust.
So, where a victim of revenge porn comes to us, they can apply for an injunction either in the Family Court or as you say, in Civil Courts under the Protection From Harassment Act. For the Family Court to be involved, the victim in the party that are seeking to publish or has released the information needs to be an Associated Person. A lot of people would assume for the Family Court that this just means a spouse or a cohabiting couple but it doesn’t, it can be wider relatives, certain types of house mates would fall within Associated Person and anyone who’s had an intimate personal relationship of a significant duration. The interesting thing is that significant duration has not been defined within our statute or case law but anecdotally, speaking to Judges, they’ve indicated that it’s more about the quality of the relationship than the time that was passed. So, if people were in the early flourishes of a new relationship and spent every day together for two weeks and during those two weeks images were produced which were then being released, or threatened to be released, it would be caught by the statute, because that would be seen to be an Associated Person and a relationship of significant duration. However, if they’d been dating for two months say, but had only been on one or two dates, then there may be a question as to whether that is a significant duration and the kind of relationship that would be caught by it.
When the Court’s looking at it and deciding whether to make an order, the Court will have regard to all the circumstances, obviously, but in particular, the health, the safety and wellbeing of the victim and any relevant chid that’s connected to the relationship involved and the orders that can be made can limit what can and can’t be published and a breach of those is a criminal offence, carrying up to five years imprisonment. So, it is a really robust protection.
If you’re in the smaller number of cases that we deal with where the parties aren’t associated, there are other injunctions that can be sought, but in those circumstances we need to show a course of conduct so, there needs to be one or more occasion. So, really the majority of circumstances we could get within the tougher protection and that’s obviously what we aim to do.
Emma Woollcott
And that’s where we tend to come in. So, where parties may not be deemed under Family Law to be Associated Parties, but they were either in a casual relationship which resulted in the photographs being taken or they have not been intimate but one has created manufactured images, like deep fakes of the other. If there is a course of conduct which the party who’s threatening disclosure would know or ought to know is going to cause distress, you can get an injunction under the Protection From Harassment Act and any breach of that can lead to imprisonment. So, we’ve had cases that involve the threat to reveal intimate images being used as a weapon where we’ll go to the Civil Court and we’ll ask first for orders anonymising the proceedings because of course, no party would want the fact that they’ve gone to seek the Court’s protection to be the thing that means they are attracting media scrutiny or having their name listed on the cause list at the Court. But yes, we can go and apply for an without notice injunction against a third party who threatens to reveal private information or images to prevent them from pursuing that course of conduct, the course of conduct that amounts to harassment, either threatening or actually publishing information or intimate images. And those injunctions can be sought relatively quickly and are helpful in serving on web hosts internationally and demonstrating that the UK Court has deemed the publication to be unlawful and unreasonable and it helps to ensure that those images are taken down.
You asked about if there was any, any use in these Court proceedings if the horse has already bolted and sometimes it can be an involved and lengthy process but generally, with some determination and some kind of coordination between the hosts here and overseas, you can track down and withdraw from publication, intimate images. A lot of the tech platforms now have very sophisticated software where they can tag images and delete copies of the same images, quite quickly.
So, yeah, this is unfortunately an emerging area. I think, you know, human beings tend to use whatever power they have over people and often the images that are created or shared in kinder times are those which are most often used when people fall out. The criminal law, I think, is catching up.
Charlie Sosna
These points seem to come up when people are at their most vulnerable and either that is that they are going through this kind of separation and it’s being used as either part of the tactic from the other side or just as sort of a way of getting back at them or at a point in someone’s career when they’re about to do something and it’s a good time to attack them.
One thing you mentioned, Emma, was deep fakes. What’s that? How does that sit in with image sharing?
Emma Woollcott
A deep fake is a manufactured image where someone’s face could be superimposed onto a porn picture. So, it’s used to embarrass someone and to, they’re often disclosed and disseminated to appear as if the person who’s face has been superimposed has engaged in fruity activity. But unfortunately, deep fakes aren’t covered by the existing criminal law, so where they are created and misused as leverage in a fight, you know, it’s very difficult to track them down and there you are relying on finding out who the publisher is and pursuing them on another basis. So, either harassment or under the Data Protection Act or things like that. So, deep fakes are something that are kind of ripe for review.
Charlie Sosna
There was some reporting recently wasn’t there in the news of like a Police station where one of the policemen had done a deep fake on one of his colleagues and, you know, that would make sense that they couldn’t bring any sort of formal charges but I think there were employment issues for them in doing that so, that was kind of the approach they took.
Emma Woollcott
I think there you’re relying on the practical remedies and appealing to the hosts to trace and digitally remove images. But yeah, there are gaps in the existing law and there are various calls for reform and consultations under way at the moment which hopefully will plug these gaps but at the moment the way that you deal with revenge porn and deep fakes and, and the sharing and abuse of intimate images really does depend on the circumstance of the taking of the images, where they’ve been shared and the relationship between the parties.
Charlie Sosna
Well, for now, let’s wrap up there.
I’d like to say thanks so much to Emma and Claire for joining me for this Mishcon Academy Digital Sessions podcast. I’m Charlie Sosna and do look out for the next episode in the series.
The Digital Sessions are a series of online events, videos and podcasts, all available at mishcon.com. And if you have any questions you’d like answered, or suggestions of what you’d like us to cover, do let us know at digitalsessions@mishcon.com.
Until next time, take care.
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