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Online Harms Part 2: What do I do if my privacy or confidence is breached online?

It has become quicker and easier than ever to communicate with each other online.  Unfortunately as a consequence it has become much harder to control the spread of information.  This briefing considers what you can do if your private and / or confidential information is shared online without your consent.

This is Part 2 of the Online Harms Briefing series.  To read Part 1 on the new duty of care on businesses to tackle online harms, please click here.  Part 3 will consider what you can do if you are being harassed online.

If you would like further information or advice on anything discussed in these briefings, please contact Cheryl Gayer.

What personal information amounts to private and / or confidential information?

Personal information is protected by the law of confidence if it is confidential in nature and is disclosed in circumstances which impose an obligation on the recipient to keep the information a secret.  For instance, an obligation of confidence may be imposed by a contract or by a special relationship (employer / employee, doctor / patient, lawyer / client).

Personal information is protected by privacy law if it is private in nature and is not intended to be shared with the general public. For instance this may include your home address, ID documents, personal contact details not in the public domain and personal financial information.

What do I do if my private and confidential information is shared online without my consent?

How to get harmful content removed

You may wish to get the information taken down. Social media platforms such as Facebook and Twitter  have mechanisms on their websites for users to report privacy violations and other harmful content which breach their rules and policies.  For instance, Facebook has an online form for users to report privacy violations whereas Twitter users can report privacy violations by clicking the icon located at the top of the relevant Tweets and selecting Abusive or Harmful Tweets.  These companies can remove harmful content from their platforms and suspend the publishers’ accounts.

If your private and / or confidential information is accessible on Google Search, Google has a Personal Information Removal Request Form and a Personal Information Removal Request Function which can be used to request the removal of such content.

If your private and / or confidential information is shared without your consent by email, your email provider may have an online mechanism for submitting complaints.  For instance, Google has an online form which allows Gmail users to report other Gmail users for violating Gmail Program Policies and / or Terms of Use. Google may disable Gmail accounts found to be in violation of its policies.

It is a good idea to save copies of the harmful content before pursuing take-down procedures.

How to claim compensation for disclosure of your private and / or confidential information

You may be able to sue the publisher of your private and / or confidential information for breach of confidence, misuse of private information and breach of data protection laws.

Breach of Confidence

To bring a claim for breach of confidence, you would need to prove three elements:-

  • the information had the necessary quality of confidence
  • the circumstances in which you had shared that information imposed a duty of confidence; and
  • there was an unauthorised use of the information.

Your potential remedies include an injunction restraining further publication, an order requiring the harmful content to be removed and damages.

Your confidential information could lose its quality of confidence if it has been widely disseminated online or disseminated in such a way that it is easily available to the public.

Misuse of Private Information

To bring a tortious claim for misuse of your private information, you need to prove two elements:

  • You have a reasonable expectation of privacy in the information; and
  • Your Article 8 right to privacy outweighs the publisher’s Article 10 right to freedom of expression.

Your potential remedies include an injunction restraining further publication, an order requiring the harmful content to be removed and damages.

Please note that you may still be able to bring a privacy claim even if your confidential information has lost its quality of confidence.

Breach of Data Protection Laws

Sharing your private and / or confidential information without your consent may amount to an infringement of your rights under the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA 2018). Data protection laws require personal data to be processed fairly, lawfully and transparently, for specified and legitimate purposes and in a way that ensures appropriate security of the personal data, including protection against unlawful or unauthorised processing.

If your personal data is processed unlawfully, you can bring proceedings against the data controller or data processor (Article 79 GDPR) and claim compensation for material or non-material damage such as distress that you have suffered. (Article 82 GDPR and section 168 DPA 2018).

If you would like further information or advice on what to do if your privacy or confidence is breached online, please contact Cheryl Gayer.

 


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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