11 September 2020
Accredited Data Protection Specialist Paul Motion of BTO’s Online Reputation team considers live streaming where the individual is innocent.
On 15 July 2020 the UK Supreme Court gave judgement in Sutherland v HMA  UKSC 32. Mr Sutherland was the subject of a “sting” by a “paedophile vigilante” group. He exchanged messages and photographs with an adult ‘decoy’ posing as a 13 year old boy. He arranged to meet the “boy”, but instead was confronted by members of the group and arrested by Police. He was convicted of various statutory sexual offences using the vigilante evidence. The UKSC held the evidence was admissible. Briefly, Mr Sutherland’s Article 8 rights to privacy and respect for family life were either not interfered with, or not engaged due to the content of the evidence.
The High Court record contains the following innocuous sentences: “Witnesses C and C then attended the meeting place at the arranged time and confronted the [accused], broadcasting the confrontation live on Facebook. A film of the confrontation has since been posted on social media”.
The UK Supreme Court was only concerned with admissibility of vigilante evidence in a criminal prosecution, by the state. There appears to have been no consideration of civil legal aspects of the live streaming, by a private individual. Contemporaneous live streaming and posting video footage of the confrontation with an alleged wrongdoer are major invasions of privacy. Scots law acknowledged a common law right to privacy in 2019*. If the individual concerned is later not convicted of a crime, serious and irreparable damage to reputation has already been done.
BTO’s Online Reputation Team was consulted by an individual who a year earlier had been confronted in a street by six members of a paedophile vigilante group. The confrontation was livestreamed on the group Facebook page. Within a very short time, several hundred adverse comments appeared, many highly threatening and abusive. The footage was then shared on the Facebook page of another vigilante group. Annotated photos of the individual were posted on both groups. Some Facebook users identified him. His family suffered embarrassment and also financial loss when locals ostracised their business.
Our client told us that charges against him had been dropped, eight months after the ‘sting’ was live streamed: his photo and comments were still on Facebook a year later.
Livestreaming of a “sting” even before an arrest has taken place, cuts across the notion of presumed innocence. Livestreaming on social media has a habit of engendering instant judgement and conviction: it is on Facebook, therefore it must be true.
Vigilante stings and live streaming are unregulated. Posting on Facebook is a private act, not an act of the State. Protection must therefore come from the civil law. Courts can grant interdicts, take-down orders, award damages, but first you must identify a defender. Otherwise, Facebook will provide only “Basic Subscriber Information” under a 1972 Act Section 1 order. This involves further litigation, delay and cost.
Facebook can and does remove harmful content (in our case it had acted quickly to take the “sting” video down), but we have found Facebook’s interpretation of its ‘Community Standards’ to be inconsistent: photos of our client and comments remained after charges were dropped.
HM Inspectorate of Constabulary in Scotland observed in its February 2020 report that almost half of online grooming cases result from the activities of vigilante groups: “Vigilante groups regard themselves as well intentioned and performing a role in which the police are failing. There is no indication that their activities are likely to cease”.
Social media providers and the courts need to work more closely to regulate live streamed content, provide a simplified process for taking down video content and identifying the source. Live streamed footage can be compelling: it can also cause immediate and lasting harm before any of the safeguards of due process have been engaged.
Paul Motion, Partner & Accredited Specialist in Data Protection & FOI Law, email@example.com / 0131 222 2932
*BC -v- Chief Constable of Police Service of Scotland  CSOH 48