Shaming covidiots on social media: fair game? – Iain Wilson

There aren’t many of us who enjoy wearing facemasks, however most of us are law-abiding and/or want to do our bit to try and protect others and stem the pandemic.  Whilst the number of those refusing to wear facemasks on public transport or in shops is decreasing, there remains a hardcore of able-bodied individuals who steadfastly refuse.

Some believe Covid-19 is a fabrication of the ruling elite/lizard people; others simply don’t care.  There are quite a few in the middle.  This perceived selfishness can be infuriating to those who have been kept apart from, or lost, loved ones and/or can simply cause resentment that some people consider themselves above the law.

In their frustration, many have turned to social media to shame these so called ‘covidiots’. This can be both a form of cathartic revenge or a way of trying to achieve a societal benefit by both deterring others and exposing a wrongdoer. The ultimate goal with naming and shaming is normally to warn others that the subjects are not suitable employees, friends, boyfriend/girlfriend material or generally not someone to do business with. It’s a sharp dose of reputational harm. Like placing someone in the proverbial stocks, it can also cause humiliation, shame, embarrassment and distress. It can in many ways be the ultimate punishment; certainly worse than being asked by a police officer to put a mask on, or, if you are really unlucky fined £100 (British Transport Police have confirmed that less than 0.1% of individuals approached by their officers for not wearing masks on public transport have been fined). One suspects that most deliberate wrongdoers have a mask in their pocket for such occasions.

Photographing or videoing a suspected wrongdoer can never be advised from a personal safety point of view. If spotted, it may trigger a confrontation which could result in something worse than a higher risk of infection. It is also plain wrong where the individual in question has a legitimate reason not to wear a mask, including a non-visible disability and thus is exempt from the legal requirement to wear a mask. Sadly, one fears the exemption may have been exploited by the fit and healthy, but dishonest, who if challenged simply claim to be exempt.  Exemption cards/badges are available, but understandably many do not wish to advertise the fact they have a disability (although of course by not wearing a mask the inference is that they either have a disability, are defiant or ignorant).

Putting aside these practicalities, we know that the sharing of videos or images showing wrongdoing – or just calling out wrongdoing – on social media can be a hugely effective way of bringing about positive change in society.  It triggered (or retriggered) the Black Lives Matter movement. Similarly, the #metoo hashtag changed the world.  The exposure of past wrongdoing sends a clear message to potential wrongdoers – you risk being exposed and it won’t be not nice.  The logic behind the #covidiot movement is simple – much like drink driving – stigmatise behaviour that is perceived to be dangerous and selfish in order to discourage it.  But is it legal?

The starting point is everything in the UK is legal unless it’s not.  There’s no statute that expressly says you can’t take a picture of a covidiot in Tesco and share it on Facebook and Instagram or even, if you want, set up a website called covidiots.co.uk.  But unfortunately things aren’t that simple.  The shaming of suspected covidiots could potentially give rise to claims for the misuse of private information, breach of data protection rights, libel and harassment.  In extreme cases it may even give rise to criminal liability.  That’s not to say don’t do it, but it should only be done with great care and a proper understanding of the risks involved.

The most common objection cited when someone is photographed by a stranger is that it is a breach of their privacy, or as lawyers call it a ‘misuse of their private information’. Amongst the lay population there is a fairly widely held belief that it is illegal to photograph or video someone without their permission.  There is no such law.  To establish a claim for the the misuse of private information you have to establish that you have a reasonable expectation of privacy.  This can be difficult to do when you are in a public place (although there may be exceptions, for example, if you are walking out of an STD clinic or narcotics anonymous meeting). So if you are snapped on the train or a tube without a mask, your privacy claim may fail at the first hurdle.  This is before one considers the public interest in exposing wrongdoers, which could defeat a privacy claim even where there was a realistic expectation of privacy.

The position gets more interesting when the photographs are published, disclosed or otherwise ‘processed’.  Here the dreaded General Data Protection Regulation (‘GDPR’) kicks in.  GDPR was the buzzword of 2018, deployed in countless spam emails (often in breach of itself) to flog enhanced cyber security packages and training courses.  To lawyers and judges it is an untested battlefield of litigation. Very few agree on the scope/ambit of the legislation, but nearly all agree its drafting is terrible. For present purposes, an image of someone amounts to their personal data.  Personal data may only be processed in accordance with the GDPR and, generally speaking, only in a way that is lawful, fair and accurate.  Processing should not be excessive and personal data should be up to date.  There are additional stipulations concerning personal data that relates to criminality.  This gives a claimant lawyer more to play with.  For instance, it is not necessary to establish that the information is private or libellous, or even, necessarily, inaccurate (for example, information in search results relating to old previous convictions may be no longer comply with the GDPR, hence the ‘right to be forgotten’/’right to erasure’ principle).  That is not to say that the GDPR would necessarily kibosh the shaming of a bona fide covidiot.  Where it is done carefully, and fairly, the public interest/freedom of expression provisions of the GDPR may permit this (at least for a reasonable period of time).

The law concerning harassment by publication has been somewhat reined in in recent years, largely motivated by a general judicial distaste for it being used seemingly to get around the law of libel and concern over it infringing freedom of expression.  The question of whether conduct amounts to harassment is, in essence, whether it is reasonable.  For example, standing outside a convicted shoplifter’s home with a megaphone for 10 hours announcing they are a thief, is likely to be considered unreasonable even though it’s true.  By analogy targeted vigilante action on social media could also be unreasonable if it goes too far- but responsible public interest reporting will rarely meet the necessary threshold (even if the subject feels harassed).  It is important to remember that liability for harassment can also arise before publication.  Whilst taking one photograph or short video might be okay, continuing to follow someone or repeatedly photographing them may not be.  Harassment is also a criminal offence (punishable by up to six months’ imprisonment) and so it’s particularly important not to overstep the mark.

Finally, libel (the written form of defamation) may be in issue.  If the subject can be identified from a publication and the clear message is that “this individual selfishly refuses to wear a mask on the tube/in Sainsburys, despite not being exempt” then the next question is whether the image is likely to cause serious harm to their reputation (a requirement of a libel claim).  This may be tied into the question of identification; i.e. is anyone who knows them going to see the posting?  One would think if the answer to this is yes, that there is a very good chance of serious reputational harm.  Truth is of course an absolute defence.  The presumption of falsity in libel claims means that it would be for a defendant (i.e. the publisher) to prove the individual was not exempt – which could be impossible.  However, in practice, particularly if proceedings were issued, the claimant might find it difficult not being candid about this issue.  The responsible publisher should in theory ask the individual at the time a photograph was taken, although this may trigger confrontation in these circumstances.  This seems to be the biggest risk and issue with covidiot shaming – being sure that the individual is not exempt.  Because someone who is exempt is certainly not a covidiot and it would be very wrong to brand them as one.

This post was originally published on the Brett Wilson Media Law blog and is reproduced with permission and thanks.

from Inforrm's Blog https://inforrm.org/2020/10/01/shaming-covidiots-on-social-media-fair-game-iain-wilson/
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