Sarah Baskerville complained to the Press Complaints Commission that an article in the “Daily Mail” on 13 November 2010 intruded into her privacy. The article was entitled “Oh please stop this twit from Tweeting, someone“.
The article reported that Ms Baskerville – a civil servant who worked for the Department for Transport – had been using Twitter to describe aspects of her job and her feelings towards her work.
The “Independent on Sunday” also ran the story – under the witty headline “The hounding of Baskerville” - including some additional information from the complainant’s blog and her Flickr photo-stream (neither of which were privacy-protected).
The article referred to the fact that the complainant had – in her tweets – described the leader of a course she was doing (as part of her job) as “mental”; said that she was “struggling with a wine-induced hangover” at work; and, again at work, told how she was “feeling rather tired – would much prefer going home”. In addition, the article pointed to a number of tweets that were political in nature: a complaining reference to a Conservative MP who was a prominent critic of Whitehall waste; a re-tweet of a Labour MP’s attack on government “spin”; and a reference to the complainant’s acquaintance with Sally Bercow.
The complainant argued that whilst in theory anybody could view the information she had posted online, she had a “reasonable expectation” that her messages would be published only to her 700 or so followers. Others would only find her account by actively searching for her, which seemed an unlikely thing for most people to do, and would only see messages she had posted, not those she was responding to.
The Press Complaints Commission was not impressed. In an adjudication published on 8 February 2011 it rejected her complaint against the “Daily Mail”. Noting that this was the first time it had had to consider a complaint about the republication of material originating from Twitter it said that there was
“no dispute that the material posted by the complainant was open to public view, and could be accessed by anyone who wished to read it. Although there were 700 actual subscribers to the complainant’s account, the potential audience was much greater. This was particularly the case as any message could be “re-tweeted” without the complainant’s consent, or control, to a larger subscription list”.
The publicly accessible nature of the information was “a key consideration in the Commission’s assessment as to whether it was private“. The PCC also had regard to the quality of the information and the public interest. It noted that
“the published material related directly to the complainant’s professional life as a public servant. The newspaper was seeking to comment on the wisdom of civil servants using social media platforms, which may give rise to claims that it can conflict with their professional duties“.
The same result was reached in the complaint against the “Independent on Sunday”.
These adjudications have been welcomed by many commentators. For example, Roy Greenslade writing on his blog described the decision as “bang on the money”, saying
“If she wanted only her 700 followers to know she was suffering from a hangover, then she should have restricted access (as she later did). She was guilty of naïveté and may reflect that she has been a bit of a twit”.
Brid Jordan writing on the RPC Privacy Blog, is of the view that the adjudications demonstrated as “pragmatic and sensible” approach by the PCC. She argues that, given Ms Baskerville’s position and the content of her postings, there was a public interest in including them in the press coverage.
But it seems to us that the position is not so straightforward, even in terms of the PCC’s own guidance. The PCC guidance on “Privacy and Social Networking” (repeated and expanded in the January 2011 edition of the Editors’ Codebook) says.
“newspapers cannot automatically justify the use of material simply on the basis that it has appeared previously on the internet and is, therefore, ‘publicly available’. Even if an individual has not taken steps to protect their personal information (by hiding it behind strict privacy settings), newspapers will have to consider whether republication of the material shows respect for the individual’s privacy”.
By treating “public availability” of tweets as a “key consideration” the PCC appears to have given little weight to its own guidance. More importantly, the adjudications do not address the question as to whether the republication “showed respect” for Ms Baskerville’s privacy. The “public interest”identified relates to “the wisdom of civil servants using social media platforms” rather than the specific content of the messages. In other words, even on the basis of the PCC’s own guidance, the adjudications are questionable.
Furthermore, not all journalists have welcomed the ruling. As Kevin Marsh points out on the BBC College of Journalism blog
The PCC’s rejection means that, in their view at least, it’s pretty much open season now for the press on people who use social networking sites. By posting anything, anywhere – however naively, with whatever unrealistic expectations that you’re speaking only to friends – you’re stepping over that invisible line, drawn by newspaper editors, that means you’ve forfeited any right to privacy. Certainly it’s an illustration of the practical fact that anyone whose job or role carries a degree of ‘public expectation’ can expect to see their tweets or Facebook posts or whatever up there in lights – accompanied by suitable tut tutting. And, let’s be honest, the press can find something tut tuttable about any one of us.
He goes on to point out that the kind of things that Ms Bakerville said on Twitter would, in the pre-2005 word, have been said in conversations, notes, or even in the pub and no one outside her friends or family would have noticed and it certainly would not have made the pages of the Mail, let alone the Independent on Sunday.
“What’s different? Well, what’s different is that these once quietly local thoughts – and those of hundreds of millions of others – are out there. And those papers printed it as ‘news’, not because it deserved to be in a national paper but because they could. And that’s the real issue. We used to have some sense of what was news – salient, timely, relevant, significant, revelatory etc – and were easily able to distinguish it from mere information – chatter, gossip, rumour, wittering, bragging. But we still haven’t got our heads around this distinction in the new, networked universe. Around the idea that just because (almost) everything is knowable, everything isn’t news“
It seems to us that there is a good argument that there was no proper journalistic justification for writing about Ms Baskerville’s tweets. Kevin Marsh is unimpressed by the “public interest” arguments put forward in the original “Daily Mail” article. It is difficult to disagree: the musings of a civil servant about a course, her hangover and her acquaintance with Sally Bercow hardly make a public interest news story. The fact that social media allows the newspapers to obtain this kind of information does not convert it into something which is “newsworthy”.
Finally, there is the legal question as to whether, as a matter of law, tweets can ever be private. It is possible to restrict access to tweets to “approved” followers. This makes such tweets “private” in the conventional sense that they are only available to a restricted number of the people: they are not in the “public domain”.
If no steps are taken to restrict access to tweets then they are available to the public generally – by carrying out an ordinary internet or twitter search. This degree of availability does not necessarily mean that information is “public” for all purposes. The law recognises “degrees of privacy”. In Mosley v News Group Newspapers Ltd  EWHC 687 (QB), Eady J said:
“The extent to which material is truly “in the public domain” will ultimately depend upon the particular facts before the Court. In Attorney-General v. Greater Manchester Newspapers Ltd  EWHC 530 (QB) the test was applied as to whether certain information was “realistically” accessible to members of the public or only “in theory”.” 
If information can only be found by sophisticated users of the internet carrying out carefully designed searches then a court might take the view that remains “private”. It all depends. Even if (as in this case), tweets are publicly accessible and the user is readily identifiable, it will not necessarily be lawful to publish their contents in a newspaper or on television. “Public availability” is only one of a number of relevant considerations.
In short, the PCC adjudications are not the last word in this area. Under the PCC’s own guidance even “public tweets” cannot be republished in the press in all circumstances. The question of the extent to which tweets can be treated as private awaits a full judicial examination.