Exclusive: Christina Michalos pours scorn on “extremely misleading” tabloid analysis
Sneaky Snapchatters rejoice: a leading media lawyer has rubbished claims that users could face criminal prosecution if they screenshot photos and share them without the snapper’s consent.
It has long been considered poor etiquette to save photos sent via Snapchat, which otherwise disappear in one to 10 seconds depending on the user’s settings. Over the Easter bank holiday, however, culture minister Ed Vaizey threw some legal weight at this unwritten rule. In a written parliamentary answer, he explained:
Under UK copyright law, it would be unlawful for a Snapchat user to copy an image and make it available to the public without the consent of the image owner.
The image owner would be able to sue anyone who does this for copyright infringement.
The tabloids have taken Vaizey’s comments and run with them, but maybe they’ve run a bit too far. The press has focused heavily on criminal law penalties — The Independent has even reported that users could face 10 years in prison and/or an unlimited fine if found guilty.
It sounds pretty scary stuff, but it’s probably not as extreme as it seems. Legal Cheek had a chat with media law barrister Christina Michalos to find out a bit more, and she made clear that some newspapers have blown the story out of proportion.
The hotshot 5RB Chambers lawyer described the story as “a classic example of media scare-mongering by twisting the words of a politician.”
Michalos — who is one of the UK’s leading authorities on social media law — explained:
It is right that if a copyright owner (ie. the creator of a picture) sends you a photograph via Snapchat, they as copyright owner could bring civil proceedings against you for copyright infringement and damages if you publish it without their consent. But it is incorrect and overly simplistic to make a blanket statement that all sharing of Snapchat images is unlawful — even in the sense of being an actionable breach of the civil law.
This is because, she continued:
Firstly, to bring an action, the sender needs to be the copyright owner themselves which may not be the case. Secondly, it may be that there is a defence — for example, implied consent, criticism and review or other defences available under the statute.
So Vaizey’s statement isn’t quite as revolutionary as it first seems. This is further bolstered by the comment given by the photo sharing app on the matter. Speaking to The Sun, a Snapchat spokesman explained:
Under UK copyright law, it’d be unlawful for any user of any social media platform to take another person’s image and republish it to the public — this doesn’t just apply to Snapchat.
But there is undeniably a criminal law element to Vaizey’s announcement. The culture minister said:
The disclosure of private sexual photographs or films without the consent of an individual who appears in them and with intent to cause that individual distress, is an offence under Section 33 of the Criminal Justice and Courts Act 2015.
This offence carries with it a maximum sentence of two years in prison.
Michalos was more than willing to accept this as true — though she stressed that images of this type will make up a very small number of screenshotted snaps. She explained:
Forwarding on of Snapchat images or putting them on the internet is very unlikely to be illegal in the sense of putting you at risk of criminal prosecution. It certainly could do if the images were private and sexual… but the majority of images won’t be in that category.
There is another offence that could be relevant here — s107(2A)(b) of the Copyright Designs and Patents Act 1988 — but that doesn’t look all that likely either. Michalos told us:
It is very doubtful that the CPS would ever be interested in prosecuting because (unless there was a sexual image element which would be a separate criminal offence anyway) there is unlikely to be a public interest in prosecuting a single individual user for private use.
So, the message from the leading media lawyer is this: unless we’re talking private sexual images, the chances of being prosecuted for sharing Snapchat screenshots is “very low”. To suggest otherwise — as the press has done — is “extremely misleading”.