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In the last few days you are likely to have read or heard that WhatsApp will soon be notifying its users when someone takes a screenshot of their conversations. Whether you reacted to this news with encouragement or apprehension, you can allay your feelings for the moment, as these reports have been found to be untrue.
The original report which was first published on a site called “8SHIT” on 23 January 2017, claimed that WhatsApp would be giving effect to this new feature from 5 February. The report also quoted WhatsApp’s CEO Jan Koum as confirming the feature. This story has since been found, by a number of news sources, to have been a hoax, although WhatsApp is yet to issue any official response.
Despite being a hoax, this story does give rise to some interesting ancillary considerations and questions such as whether the taking and disseminating of screenshots of private conversations is in fact legal and whether, were WhatsApp to in fact implement such a notifications feature, it would provide any meaningful benefits or protection to its users?
Common sense dictates that taking a screenshot of a conversation and storing it privately without disseminating it at any stage elicits no issues. However, recent experience within the social media sphere has proven that this is often not the intention behind the taking of many screenshots, with increasing volumes of screenshots of private conversations finding their way into the media with largely detrimental results (both legally and reputationally) for one or both of the parties involved.
From a technical legal perspective, should someone publish screenshots of your private conversations (be they on WhatsApp, Snapchat or otherwise), it is likely that they have in fact infringed your right to privacy and you may well be justified in attempting to take legal action in the circumstances.
However, once the content has been published and the subsequent damage entrenched, any monetary compensation received through arduous legal channels will likely provide scant consolation in the face of the social, reputational and often professional carnage that has likely ensued. Never has the adage “prevention is better than cure” been more applicable than in the face of a potential social media faux pas.
It is worth noting that there are limited circumstances where the publication of private conversations may be legally permissible. For instance, where the explicit permission of the other party to the conversation is obtained or where public interest considerations outweigh the right to privacy.
It is also significant to note that our law treats conversations which take place in groups (for example, WhatsApp groups) differently to a private chat between two people. As soon as you have disseminated content to more than one other person, the law considers it to have been published in the public domain. No distinction is drawn between WhatsApp groups of 5 or 500 people or even content published on Twitter to 50 000 people. In all these instances your right to privacy has been qualified significantly.
The question that remains is whether a notification feature, should it one day be implemented in fora such as WhatsApp, would meaningfully contribute to alleviate these privacy and publication concerns? The short answer is that it is unlikely, as receipt of a notification does not circumvent the core issue of the screenshot still existing with the threat of being published. It would seem that this notion of screenshot notifications emanates from Snapchat which provides parties to a conversation with a notification should someone take a screen shot of their post or snap.
While this is a useful feature, not only does the screenshot remain in existence poised for dissemination but a quick internet search provides easy and quick ‘hacks’ to circumvent this feature.
While the ever accelerating, ever mutable juggernaut that is social media continues to throw out its litany of legal and social issues which often overwhelm one as to how respond, considerations such as these often provide one with a timely reminder to return to the touchstone of reason which suggests that if you would not be comfortable publishing content with your name, your picture and your social or professional affiliations accompanying it, do not publish it in digital format. Content on social media can, and likely will, be used against you.
- Emma Sadleir is an admitted attorney who specialises in social media law. She is co-author of the book "Don't Film Yourself Having Sex... And Other Legal Advice For The Age of Social Media".
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