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Privacy and the Law in the Oversharing Era


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Presentation at Trinidad & Tobago Chapter of ISACA on 20th November, 2015

Published in: Law
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Privacy and the Law in the Oversharing Era

  1. 1. Privacy and the law in the ‘oversharing’ era Jason Nathu Attorney-at-Law | Tutor | Hugh Wooding Law School @jasonnPOS
  2. 2. Reading and Resources Throughout and after this presentation, I will be posting links to resource material via my Twitter account @jasonnPOS ( #ISACATT
  3. 3. Privacy and Confidentiality
  4. 4. What is ‘privacy’? “The state of being free from public attention.” Oxford English Dictionary
  5. 5. The ‘right’ to privacy Constitution of Trinidad and Tobago Chap. 1:01 Sec. (4). It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely: (c) the right of the individual to respect for his private and family life
  6. 6. Privacy and the law No other legislation in Trinidad & Tobago that defines that right, or gives guidance on any limitations of the right to privacy. Other jurisdictions may have specific legislation on that issue. E.g. UK Human Rights Act Reliance on the law of ‘breach of confidence’.
  7. 7. What is ‘breach of confidence’? • A person who has been given information in confidence, should not take unfair advantage of it. • Remedies include injunctive relief (to prevent a breach) or damages (after a breach has occurred). • Examples: personal employee records; medical records; details of relationships; private correspondence.
  8. 8. Elements of breach of confidence • The information must have had the necessary quality of confidence, that is, it must not be something which is public property and public knowledge. • There must have been an obligation of confidence in the circumstances under which the information was imparted. • There must have been an unauthorised use of that information by the party communicating it to the detriment of the confider.
  9. 9. ‘Oversharing’ and Technology
  10. 10. Legal issues affecting social media • Privacy • Defamation • Harassment and cyberbullying • Obscenity and pornography • Posting or texting while driving • Intellectual property
  11. 11. Defamation A statement is defamatory if it tends to: • expose the person to hatred, ridicule, or contempt; • cause the person to be shunned or avoided; • lower the person in right-thinking members of society generally; or • degrade the person in his/her business, trade, occupation or profession.
  12. 12. Harassment and Cyberbullying Section 30A of the Offences Against The Person Act Chap. 11:08 defines harassment. Harassment includes: “Making contact with the person, whether by gesture, directly, verbally, by telephone, computer, post or in any other way.”
  13. 13. Obscenity and Pornography The Summary Offences Act Chap. 11:02 makes several provisions for fines in relation to ‘obscene’ publications or acts. The Children’s Act, 2012 imposes hefty sanctions for any type of pornography depicting anyone below the age of 18. Consider how many teenagers use Snapchat or WhatsApp and what they may be sharing via those social networks.
  14. 14. Texting while Driving The Motor Vehicles and Road Traffic Act Chap. 48:50 imposes a fine for “Driving while holding or using a hand held or mobile device.” This extends to talking, texting, posting on social networks or even taking ‘selfies’ while driving a motor vehicle.
  15. 15. Intellectual Property Infringement of copyright. Recent US case which declared that a 140 character tweet is capable of originality and thus may be protected by copyright. Uploading photographs to share on social networks.
  16. 16. When Privacy meets Technology
  17. 17. Hypothetical Question What if someone posts a photograph of me online that I do not like?
  18. 18. What if someone posts a photograph of me online that I do not like? What is the nature of the photograph? Does it depict something that is reasonably expected to be confidential? Does the social network or site or server on which the photo was posted have any policy for breaches of ‘privacy’? Remedy of infringement of intellectual property: Copyright vests in the author (photographer).
  19. 19. Hypothetical Question What if took my phone to repair and photographs from my phone were leaked online?
  20. 20. What if took my phone to repair and photographs from my phone were leaked online? Did I have a contract with the repair shop for the service provided? Written or oral. Was there a confidentiality clause? Is there an implied contract term of confidentiality? Does the repair shop have a duty of care of confidentiality? Other confidential information on my device: credit card numbers, medical history, personal and business emails, financial records. Possible remedies: breach of contract, breach of confidence, negligence
  21. 21. Lessons learned from Ho v Simmons
  22. 22. Lessons learned from Ho v Simmons “Given the rapid pace with which the face and fabric of the society has changed and cognizant of the infinite reach of social media, it cannot be denied that the privacy of the person is under attack and there is dire need for the enactment of statute to afford protection for citizen’s personal privacy…”
  23. 23. Lessons learned from Ho v Simmons “There can be no circumstance that is more private and confidential than where parties are engaged in consensual sexual activity in private. In such a scenario it is unlikely to expect that there would be an express agreement by the parties that their liaisons would be confidential but in such a circumstance an obligation of confidentiality can and must be implied. Consequently, all photographs and recordings which capture sexual practices conducted in private should only be disseminated where the express consent of all the parties involved has been obtained…”
  24. 24. Lessons learned from Ho v Simmons “The impact upon an individual’s privacy is tremendous and the absence of clear and cohesive legislation to protect our citizens’ privacy and to punish those who violate the rights of others, can cause us to descend into a bottomless pit of anarchy. The use of obscene language in a public place is an offence, yet, online comments to newspaper articles and messages posted on social media are very often foul, racist and despicable but no criminal charges are preferred since evidential challenges arise in relation to the authorship of the offending material. A similar challenge exists in relation to the posting of online defamatory statements…”
  25. 25. Orders of the Court • The Defendant is to pay to the Claimant the sum of $150,000.00 inclusive of an award for aggravated damages. • A perpetual injunction is hereby issued so as to restrain and/or prohibit the Defendant his servants and/or agents from disseminating, uploading, posting and/or publishing nude and/or sexually explicit photographs of the Claimant and/or photographs that depict her performing the act of fellatio whether by way of the internet, cellular phone or any other form of social media or by any other means whatsoever. • It is hereby ordered that all the photographs exhibited in this matter should be place in a sealed envelope until the time limited for the filing of an appeal, upon expiration of same, if no appeal has been filed, the photographs are to be destroyed by the Registrar. If an appeal is filed the photographs shall remain sealed until any further order is issued by the appellate court. • The Defendant is to pay to the Claimant costs calculated on a prescribed cost basis. • There shall be a stay of execution of the payment of the awarded sum of $150,000.00 and the costs awarded of 14 days.
  26. 26. Thank you! Questions or comments? @jasonnPOS