Libel/Defamation: Libel, privacy breaches and harassment on Snapchat

Snapchat is a multimedia messaging mobile application (app) that allows users to send videos and photos to their contacts. The recipient can normally only view an image/video for a limited period of time (perhaps just a few seconds).  This encourages some users to send risqué (sometimes explicit) images/videos to one another. This feature is far from foolproof. A receiving party may take a screenshot of the image or a photo and/or video of the screen with a separate digital camera/phone.

Snapchat's popularity has increased hugely over the last few years, particularly with teenagers and young adults.  New features have been added to the app include the ability to add filters to photos, the uploading of media to a ‘Story’ and the sharing of users' locations with friends on a ‘Snapmap’.

Snapchat Stories

As well as sending individuals photos, users can also publish photos to a 'story'.  This is a feed which stays live for 24 hours and can be viewed by users' friends. Public stories are created for community events such as a music festivals or a football match. Snapchat collects all the snaps sent during these events and posts them on a public story for all Snapchat users to see.

Snapmap

The most recent update to Snapchat is the addition of a ‘snapmap’. This is an interactive map which updates in real time with users' locations.  Each user has their own customised avatar which changes depending on what Snapchat thinks the user is doing.  For example if a user is driving, the avatar will be shown in a car, if the avatar is on a beach it will have an umbrella over its head and so on. It is possible to opt out of the feature by either going on "Ghost Mode".  Alternatively, users may choose to limit the number of 'friends' with whom they share their location.

Legal issues

The apps features clearly raise a number of privacy issues.  However, a recent study found that of the top five social media platforms (Snapchat, Facebook, Twitter, YouTube and Instagram), users trust Snapchat the most to protect their personal data and privacy. Like all social media platforms, Snapchat is rife for communications-based claims between users.  Some of the main ones are set out below.

Breach of confidence/Misuse of Private Information/Breach of the Data Protection Act 1998

The risqué nature of Snapchat suggests that the unauthorised onward dissemination of intimate images/videos will be the most fertile ground for legal claims.  The issue in such cases will normally be the extent of any consent granted (i.e. whether it was expressly given or can be implied).  It does not follow that a user emailing one individual an intimate image is granting consent for that image to be captured and sent on to others.  Indeed, the mere retaining of the image may amount to a misuse of private information and give rise to a claim for compensation.  Where the image is sexual in nature, its onward dissemination may even amount to a criminal offence (section 33 Crime and Courts Act 2015, commonly referred to as revenge porn).

Many privacy breaches may be more subtle.  Person A may choose to share a secret with Person B. If Person B shares that with Person C, D and/or E etc. then that may give rise to a claim for breach of confidence (and/or the misuse of private information where the information is also inherently private in nature).

Defamation

The normal rules of defamation apply to Snapchat.  A message sent from one person to another is classed as a 'publication'.  If a message is sent to anyone other than the claimant (i.e. the person defamed) and it causes, or is likely to cause, serious harm to their reputation then a claim for libel could be pursued.  A defendant will also be liable for the republication of defamatory statements they have made, where such a publication was reasonably foreseeable.  Additionally or alternatively, a claimant may pursue a party who republishes a libel.  It is no defence to claim for a defendant to say that they were simply repeating what someone else had said.  This is because the republication of a libel may do as much, or more, harm than the original publication.  Intention is irrelevant.

A claim for libel will not succeed where no serious harm to reputation has been suffered or is likely and a libel claim cannot simply be advanced because a statement is false or has upset the claimant. However, if the 'serious harm to reputation' test is met then damages for distress can be sought on top of damages for injury to reputation.

Harassment

Snapchat and other social media platforms encourage the sharing of personal information.  This increases the risk of nefarious activity, such cyberstalking and trolling. With the introduction of Snapchat Stories, users are advertising who they are, where they are, who they are with and what they are doing.  Users should carefully consider the potential consequences of what they sharing and tailor their privacy settings/content accordingly.

Social media activity may simply encourage unwanted contact.

Where a user is being harassed via Snapchat or as a result of information derived from Snapchat (harassment may involve a mixture of online and offline acts), they can potentially bring a claim for harassment.  A successful claimant is entitled to damages to compensate them for the distress, anxiety and injury to feelings they have suffered.  Harassment can also amount to a criminal offence.

Taking any form of legal action is a significant step.  Even where there is a strong legal case, instructing solicitors is expensive.  A party cannot simply "take out an injunction"; a court must be persuaded that such a draconian measure is necessary. Furthermore, an injunction is not a 'standalone' remedy; proceedings must be pursued to a full trial.  Aside from the cost, this can be a stressful process.

Where it is necessary to take legal action it is often prudent to instruct solicitors to send a 'Cease and Desist' letter.  This will set out why the defendant's conduct is lawful and warn them that if it continues that a civil claim or police complaint is likely to follow.  Alternatively, if appropriate, compensation and legal assurances that there will be no repetition can be sought.

Where a prospective legal claim arises, it is important to avoid engaging in 'tit-for-tat' communications.  It is best to simply preserve evidence (if possible) and make an appointment with solicitors.  In an harassment case, if it has not be done already, one polite, but firm message should normally be sent to the other party requesting that the conduct cease immediately.  Where there is a credible threat of violence the police should be contacted.

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.