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May 18, 2014 | by  | in Features Homepage |
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Understanding Oversharing

We’re happy to share our relationships, our holidays, our eating habits, our mundane thoughts. We post photos, status updates, videos, music, conversations, motivational quotes, items for sale. We text, we email, we call, we snapchat. We’re everywhere, all the time. We think we’re in control.

But when our photos are taken from us and posted on another website, we’re outraged. We’re autonomous individuals. We have a right to privacy, right?

Two weeks ago, a debate broke out on the Overheard @ Vic Facebook page as to the legality of Photos From Victoria, a Tumblr page which automatically saves and posts images shared on Instagram. Any photos tagged to the Victoria University campuses or hostels are saved and blogged between 9 am and 11 pm daily using IFTTT (If This Then That) software. IFTTT lets you create a recipe using ingredients – your Instagram posts – whereby if “this” trigger happens (you post a photo tagged at Uni), then “that” action (posted on Photos From Victoria) occurs. While some voiced their disgust, calling the page’s creators “creeps”, others were quick to point that the Photos From Victoria’s hosts weren’t doing anything wrong, legally at least.

Overheard @ Vic page member Erica Douglas-Skyner commented that while “it’s not illegal, its [sic] definitely morally shaky. You should probably message people to ask or at the very least let them know that you’re posting their personal content to the internet.” Which begs the question – is it personal content? You took the photo. You’re in the photo. You posted it from your Hall. It feels like it belongs to you, right? And it does. But just because it’s yours doesn’t mean others can’t use it – unless you expressly tell them not to. Despite popular opinion, according to Instagram’s privacy policy and your public profile setting, use of your Instagram posts does not amount in any way to a breach of your privacy.

The scale of outrage at such a website is an alarming indication of the lack of awareness of privacy laws in New Zealand, and evidence that no one ever reads the terms and conditions when they sign up to a new social-networking service. The burden to protect your individual privacy rests predominantly with yourself – once your information’s out there, it’s anyone’s game. It’s easier to keep something private than it is to try to claw it back once the entire civilised world has seen it. Just ask Aaron Smith, whose naked torso (with an added bonus) made the rounds after infamous New Zealand Herald reporter Rachel Glucina shared it on Twitter.

As the Northern Ireland High Court warns, “anyone who uses Facebook does so at his or her peril.” But surely we’re not all expected to stay up late reading Irish judgments before bedtime. Do social-networking sites have an obligation to inform and remind us of their privacy policies? It’s hard to say exactly how they could force us to read their legalese. Are we really ‘accepting’ the terms and conditions when we click the button without a second’s thought? How far can social-networking sites intrude into our privacy and personal property before we start to object?

Everything we do on Facebook is recorded and on-sold to marketing agencies – even the passive-aggressive status updates about dishes that you begin to type only to delete (I know, right?!). We’re giving them our personal information for nothing, only to have it sold back to us as ads a day later, and we’re grateful for the service. In fact, it’s pretty hard to live without it. We like to think Facebook is free, but privacy is an extraordinary price for admission to your own social life. We’ve become so desensitised to breaches of privacy and accustomed to oversharing that it’s hard to imagine an intrusion into our privacy that would make us consider opting out of social media.

While we were brought up to respect one another’s personal space and are reluctant to ask much about each other’s personal lives, let alone post it all over the internet (Rachel Glucina aside), our laws don’t reflect our morals. This is what Photos From Victoria sets out to teach us – it’s an experiment of sorts to reveal unawareness of privacy and rights to our content online. The Bill of Rights has a lot to say about liberty and freedom of speech, but is noticeably silent on privacy. You can complain to the Privacy Commissioner to the effect of saying “Stop it, I don’t like it” to primary-school bullies. There is some legal recourse available against people publishing or collecting our private information. Aside from requiring time and money that most of us don’t have, you’d have to show more than “Hey, that’s mine!” to satisfy the elements of the torts of privacy or intrusion into seclusion in a claim.

Unless you’re Mike Hosking or a law geek, a drawn-out court case isn’t going to be what you want. And it’s not much help when all you’re after is a way to stop your ex from posting naked pics of you on Facebook.

The Harmful Digital Communications Bill currently before Parliament seeks to address this gap in the law. It aims to embody the current legal principles, but provide more accessible and appropriate remedies by introducing an agency designed to process complaints, offer information and advice, and granting the courts with the power to order the removal of material that causes serious emotional distress. The agency would have a strong relationship with social-media sites like Facebook and Twitter, and would be able to negotiate issues by providing warnings along the lines of: “If you don’t remove this material, this person can apply for a court order against you.” It’s likely the agency role will be fulfilled by NetSafe. The Bill currently needs more work – in its original form, you couldn’t complain about threatened harmful publications, despite this being a recognised gap in the law.

It’s pretty intuitive that we should have some way to protect our privacy, so it seems almost negligent that the law is so far behind. What throws a spanner in the works is our right to freedom of expression, which is in the Bill of Rights. You have a right to say whatever you want, and this directly conflicts with another person’s right to keep their personal information to themselves. Somehow, these rights need to be balanced. In court cases, at least, more personal and significant information will demand a greater justification for publication than just “It’s my right to say what I want.” While it’s pretty hard to argue that someone’s right to post naked pics or your deepest secrets online should outweigh your privacy, concerns about the protection of secrets that the public should know about, especially about public figures (Hey, Len Brown, you sexy thing!) have been a major factor delaying heavy-handed legal protections. Privacy is recognised by the courts as a value worth protecting. It’s time the law caught up to protect that ‘value’, and recognise it as a human right before it’s completely eroded.

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