How to walk the social media privacy tight rope

Article 31 of the Kenyan Constitution states that everyone has a right to privacy, which includes protection from arbitrary searches, not to have information relating to their family or private affairs unnecessarily required or revealed and privacy of their communication. This is why it is sometimes difficult to get transcripts of your phone communications without a court order – because the person with whom you are communicating has a right to have their privacy protected.

Despite this right, breach of the privacy rights of individuals still takes place through many platforms especially social media. The argument is that those sending out information have a freedom of expression. Indeed, it is true that one has freedom of expression, but when this freedom injures another person’s right to privacy then it becomes a civil wrong.

Hopefully this article will assist people know how far is too far? How do you attain the intricate balance between your own freedom of expression and respecting an individual’s privacy rights? How many times have you shared videos and photos of people through social media platforms like whatsapp without their consent?

In 2016, beauty queen Roshana Ebrahim was crowned Miss Kenya. Her celebration was cut short when a former boyfriend decided to betray her trust in a uncanniest way. He decided to share Ms Ebrahim’s nude photos with the pageant organisers, Ashleys (K) Limited.

It is obvious that he had access to her nude photos by virtue of the relationship they had together. Perhaps it was part of their amorous ways as a couple. However what came out clearly in a suit is that the petitione (Ms Ebrahim) did not authoris0e the public sharing of her nudes to her erstwhile boyfriend. This action was done without the beauty’s consent.

Well, she fell from grace and was dethroned by the pageant organisers on the strength of the nudes. A new beauty queen was enthroned. Not one to let go of her crown that easily, Ms Ebrahim put up a brave fight by filing a constitutional petition against her ex-boyfriend, the pageant organisers and the new beauty queen.

The suit against the pageant organisers and the new beauty queen failed because the court found it was a matter of contracts and not a constitutional issue.

However, in what is a leading case on privacy rights, the former boyfriend was found to have breached the petitioner’s privacy rights and ordered to pay Sh1 million as damages. The court found that publishing a person’s private photos without their authority is a violation of the right to privacy, whether or not the photos are flattering or unflattering. The issue is lack of consent.

This right preserves a person’s dignity but doesn’t protect criminal activities. One cannot claim to have a right to privacy when the photo or video clearly shows them engaging in a criminal activity. Therefore, a viral video of a person smoking a banned and illegal substance and shooting a reveller is beyond the scope of this right.

This judgement is important for social media users, journalists and others. Everyone has a right to have their privacy protected. Therefore seek consent before sharing photos or videos, even if you hosted the event. Do not share photos without authority and consent as it can injure another person’s rights.

For those in her advertising industry, it is always better to use photos or videos which have been authorised rather than using a person’s photo even if that person be a child. The key to risk minimisation is getting consent.