Defamation, privacy and harassment on WhatsApp: a new legal frontier?

Part of the appeal of WhatsApp, the instant messaging service, is that it allows you to join groups from which you can send messages and pictures to other participants across the globe with relative ease and at no cost. Gone are the days when parties or other social events are organised by email or invitations sent by post (at least amongst younger generations). WhatsApp provides immediacy and is user-friendly.  No surprise, then, that Facebook bought it for £11.4bn in 2014.

The legal pitfalls of using WhatsApp have not, however, been given much consideration. Libel claims have been brought in respect of Tweets (see, for instance, here) but, as far as we are aware, there has yet to be a trial in the UK in respect of wrongs perpetrated on WhatsApp. With the number of subscribers having exploded in recent times (now 1.2 billion) and 34 billion messages being sent every day, it seems unlikely that this will remain the case

The fact that WhatsApp is, ostensibly at least, more private than, say, Twitter, does not mean that users are immune from legal action. Below some of the relevant legal causes of action are considered.

Breach of Confidence/Misuse of Private Information

Sending a person’s information to friends and/or family on WhatsApp constitutes a disclosure to a third party. If such information is private or confidential and has been disclosed without that person’s consent, then it is likely that, absent any countervailing public interest, they would have a prima facie claim for breach of their privacy rights.

Disclosure need not be to the public at large and the subject matter need not relate to their sex life.  The laws of privacy and confidentiality in this jurisdiction are sufficiently broad to protect a wide range of information.

Take, for example, a fictitious character called Ben, who has recently moved to a new area. He invites his neighbour to his house for a coffee.  They get on well but during the visit the neighbour notices that there is a partially opened box containing large quantities of antiretroviral drugs, which are commonly used to suppress the HIV virus.  Having previously worked as a nurse, the neighbour is familiar with these drugs but says nothing more at the time.  Ben did not mention that he is HIV positive. Indeed, this was information that he had only disclosed to his parents.

The very next day, the neighbour decided to send a message –believing it to be in good faith - to six of his other neighbours on a WhatsApp group. It stated: “I had coffee with Ben yesterday. He was extremely nice. We should invite him into this group. I do feel a bit sorry for him though as I believe he is living with the HIV virus.”

Whilst seemingly well-intentioned, this message would almost certainly give rise to a claim for misuse of private information and/or breach of confidence and/or breach of the Data Protection Act 1998.  A person’s medical life is one class of information that has been fiercely protected by the Courts in this jurisdiction. Further, the private and confidential information was obtained from Ben’s home, which the Courts have generally recognised as a place where a person has a reasonable expectation of privacy.

Defamation

Members of the public often have a misperception that defamatory allegations need to be published in national newspapers to a wide audience in order for them to be actionable. This is not true. Indeed, the recent case of Sobrinho v Impresa Publishing [2016] EMLR 12 made clear that a publication can be defamatory, and surmount the serious harm threshold (see our blog here), where it has only been made to a single person.  Such a situation will only generally arise, however, where the allegation is of the utmost gravity and is likely to have a serious impact. Derogatory allegations will fall short of the serious harm threshold

The fact that a message was sent by mistake, in an outburst of rage perhaps, is not a defence to a libel claim. As it stands, there is no way in which to recall messages on WhatsApp (although according to reports this may soon be changing).

Harassment 

Under the Protection from Harassment Act 1997 (the Act), a person will be found liable for harassment if they have committed a course of conduct which they know, or ought to know, amounts to harassment and do not have a legitimate defence.  While harassment is not defined in the Act, it does state that it includes conduct which causes a person alarm and distress. ‘Conduct’ under the Act covers speech, including written words.  The fact that such words may be true will not necessarily provide a justification. As Laing J noted in the case of Merlin v Cave [2014] EWHC 3036 (QB):

“Harassment can take different forms. Where the harassment which is alleged involves statements which a defendant will seek to justify at trial, there may be cases where an interim injunction will be appropriate. These are cases where such statements are part of the harassment which is relied on, but where that harassment has additional elements of oppression, persistence or unpleasantness, which are distinct from the content of the statements. An example might be a defendant who pursues an admitted adulterer through the streets for a lengthy period, shouting "You are an adulterer" through a megaphone. The fact that the statement is true, and could and would be justified at trial, would not necessarily prevent the conduct from being harassment, or prevent a court from restraining it at an interlocutory stage. The same point would apply to Howlett, if the banners flown from aircraft for several years over the claimant's house, instead of conveying abuse, had set out truthful allegations.”

In the context of WhatsApp, then, someone who repeatedly sends abusive messages to you might be pursuing a course of conduct which amounts to harassment. This could also still be true even if the perpetrator is targeting members of your family. Following the case of Levi v Bates [2015] EWCA Civ 206 a victim of harassment can now be anyone to whom alarm or distress were objectively foreseeable, as long as the conduct was targeted at someone.

Conclusion

Libel, privacy and harassment claims on WhatsApp represent unchartered territory for the Courts in this jurisdiction. With the number of WhatsApp users increasing rapidly, however, it will surely not be long before Judges are seeking a guide on “How WhatsApp Works” similar to the guide entitled “How Twitter Works” which was put before the Court in the case of Monroe v Hopkins.

Click here to find out how Brett Wilson LLP solicitors can assist you if you have been defamed, here if your privacy has been breached or here if you have been harassed.