The recent hacking scandal of Hollywood celebrities’ accounts has raised several questions and concerns over the security of a cloud user’s account. Jennifer Lawrence’s representatives described the hacking and online circulation of naked pictures of her from iCloud as a “flagrant violation of privacy” and few would dispute her concerns. But once the cat is out of the bag, what are the legal options available to celebrities to limit the damage
The criminal route
The first consideration may be to call in the police. A key benefit of this approach is that the police have wide powers to investigate and seize data when tracing the perpetrators. These powers can be vital if the police act quickly. However, the police have limited resources and once any police investigation has begun, there is a risk of the victim losing control over the process. The victim also needs to be careful that any parallel investigation does not interfere with the police investigation and pervert the course of justice.
Injunction
If the victim prefers to go down the civil route, an injunction may be an option. The so-called “superinjunction” was the nickname given by the press to a type of privacy injunction where either the parties were anonymised or the existence of the injunction itself was kept secret. Such injunctions became common in 2010 and 2011 but their use has dropped significantly after numerous celebrities were named as having obtained them, causing almost as much embarrassment as the original publications that they sought to protect. But that does not mean the privacy injunction is dead. Even if the material has been published or stolen it may still be possible to use privacy law and obtain an injunction to prevent further publication or remove published content on the internet in appropriate cases.
Photographs have been recognised by the courts as being particularly intrusive. In the famous case of Michael Douglas and Catherine Zeta Jones’ wedding pictures in Hello! Magazine, the court recognised that photographs enable viewers to become “voyeurs” into the lives of individuals, having a far more intrusive effect than any equivalent verbal description.
Leaked naked photographs are a prime example of this intrusion and so victims of the leaks have strong grounds for requesting take down of the photographs from website operators on privacy grounds, even if unauthorised copies of the photographs already appear elsewhere on the internet. Indeed, the terms of use for many social media websites now state that users may not post naked or invasive photographs. It helps to draw attention to these terms in any take-down request, particularly where the website operator may not be familiar with local law.
Right to be forgotten?
In similar vein to the privacy cases, the courts are also increasingly ordering the removal of content, including photographs, on data protection grounds. The much talked about case of Google Spain v Costeja Gonzalez in the CJEU has established that Google Inc can be ordered to removal links to personal data which is out of date or irrelevant. This principle would apply equally to inaccurate personal data that has been published unlawfully. Removing material from search engines can go a long way to removing the accessibility of material on the internet.
Copyright infringement
An alternative and often highly effective approach is for the copyright owner to request take down of photographs published without consent, irrespective of whether the photographs are private or not. For this route to succeed, it will normally be necessary to give some kind of statement of truth or proof as to ownership of the copyright in question, which can sometimes be a complex matter if there are questions as to whether the copyright has been assigned. However, if these hurdles can be overcome, the law of copyright is more settled and internationally recognised and so can often lead to a faster reaction from the website operator.
The PR approach
Despite the above toolkit, for Jennifer Lawrence and others, unless action can be taken very quickly, the cat may be out of the bag before legal remedies can kick in and there becomes a more complex question of how to deal with multiple publications on the internet. In those cases, a sensible PR strategy and long term clean up strategy may be the better approach than resorting to lawyers.
Lord Neuberger recently spoke at the Hong Kong foreign correspondents club and noted that: “[technological] developments may make it inevitable that the law on privacy, indeed, the law relating to communications generally, may have to be reconsidered. It undermines the rule of law if laws are unenforceable. There is no doubt that these technological developments give rise to enormous challenges for people involved in the law and people involved in the media.”
This is undoubtedly true. However, technology is also developing to deal with these problems. Software can already be used to identify and monitor the content without having to rely on Google searches. Techniques are also be used to suppress negative content and promote neutral or positive content in the Google search results. It’s surely only a matter of time before someone develops an effective tool to ensure that seriously unlawful material can be blocked more effectively without posing a threat to freedom of expression.
Ashley Hurst is a partner and Iona Millership is an associate in the Media Litigation team at Olswang
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