Online forum moderators need to be vigilant for privacy invasions

21 May 2009

Even before Max Mosley secured an award of £60,000 in his privacy action against the News of the World in 2008, our legal advisors at Charles Russell LLP were warning us our moderation work would have to recognise that privacy invasions, unless justified by some sort of public interest defence (which is rarely the case for most user-generated content), can result in awards of substantial damages.

For brands offering community platforms on their website, or more fashionably using thirdparty social networks such as Flickr and Twitter, unwarranted infringements of privacy can be a particular problem, and far harder for inexperienced moderators to spot than the already challenging issue of defamatory postings. Privacy infringements, after all, don’t necessarily have to involve anything offensive or derogatory, merely something private. And generally it doesn’t even matter whether the private information is true or false.

So the moderating world is changing and moderators have a slightly easier time of judging privacy infringements for clients in matters relating to health or sexual activity (as there’s a reasonable expectation of privacy when it comes to sexual relationships). But the unwary are easily caught out.

For example, information that can lead to someone’s home address being identified might well constitute an unwarranted infringement. Bond star Daniel Craig recently complained successfully to the Press Complaints Commission about an article that appeared in the Mail on Sunday which published a photograph of a building in which he was said to have bought a flat, describing the area of North London where it was located and identifying a nearby park. Not an address, but the PCC ruled that the paper printed too much information about the apartment’s location and ran the risk of identifying it without justification.

Social networks, chat rooms, forums and blogs all disseminate potentially private information. Whether by photographs or through exchange of comments, what a person is doing where and with whom may seem trivial, harmless and not open to legal challenge. But on closer inspection, and depending on the nature of the information being published, it can very easily intrude into someone’s private life in a way they could not only take exception to but successfully go to court over. For some, like Max Mosley, any embarrassment — in his case around sadomasochistic activities with a number of prostitutes — won’t deter them from legal action. Be careful out there.