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Privacy and the law
in the ‘oversharing’ era
Jason Nathu
Attorney-at-Law | Tutor | Hugh Wooding Law School
@jasonnPOS
Reading and Resources
Throughout and after this presentation, I will be posting links
to resource material via my Twitter account @jasonnPOS
(www.twitter.com/jasonnPOS).
#ISACATT
Privacy and
Confidentiality
What is ‘privacy’?
“The state of being free
from public attention.”
Oxford English Dictionary
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
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’.
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.
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.
‘Oversharing’ and
Technology
Legal issues affecting
social media
• Privacy
• Defamation
• Harassment and cyberbullying
• Obscenity and pornography
• Posting or texting while driving
• Intellectual property
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.
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.”
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.
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.
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.
When Privacy meets
Technology
Hypothetical
Question
What if someone posts a
photograph of me online that I
do not like?
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).
Hypothetical
Question
What if took my phone to repair
and photographs from my
phone were leaked online?
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
Lessons learned from
Ho v Simmons
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…”
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…”
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…”
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.
Thank you!
Questions or comments?
@jasonnPOS jason@nathuLAW.com

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Privacy and the Law in the Oversharing Era

  • 1. Privacy and the law in the ‘oversharing’ era Jason Nathu Attorney-at-Law | Tutor | Hugh Wooding Law School @jasonnPOS
  • 2. Reading and Resources Throughout and after this presentation, I will be posting links to resource material via my Twitter account @jasonnPOS (www.twitter.com/jasonnPOS). #ISACATT
  • 4. What is ‘privacy’? “The state of being free from public attention.” Oxford English Dictionary
  • 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. 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. 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. 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.
  • 10. Legal issues affecting social media • Privacy • Defamation • Harassment and cyberbullying • Obscenity and pornography • Posting or texting while driving • Intellectual property
  • 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. 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. 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. 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. 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.
  • 17. Hypothetical Question What if someone posts a photograph of me online that I do not like?
  • 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. Hypothetical Question What if took my phone to repair and photographs from my phone were leaked online?
  • 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
  • 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. 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. 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. 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. Thank you! Questions or comments? @jasonnPOS jason@nathuLAW.com