HARRISBURG, Pa. (WHTM) -- What rights do we have when it comes to digital privacy?
The abc27 Investigators wanted to answer this question after a recent investigation involving a Dauphin County family and their au pair. The family discovered their au pair was posting videos of their children on her TikTok account, which has more than 93,000 viewers, without their consent.
"Unfortunately Pennsylvania and most of the United States are fairly antiquated in terms of their privacy laws," Devin Chwastyk said.
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Chwastyk is the chair of the Privacy and Data Security Group at McNees Wallace & Nurick law firm. He is one of few attorneys in the Midstate who focus on cyber security and data privacy.
"We see a large number of cases where people would like to see things taken down off of social media, whether that's a photograph or an unfavorable review of their business or a defamatory comment about them. We often wrestle with large social media companies to try and force a take down, unfortunately those companies have immunity under a federal law called the Communications Decency Act and so they set up a relatively strenuous process to get any kind of content taken down off of their networks," Chwastyk said.
So what can you do if someone posts a video or picture of you on social media without your consent? It can can depend on where you are when the photo or video is taken.
"So if you are in a public place, like walking down a sidewalk where anyone can view you, you would have what we say no reasonable expectation of privacy in what you are doing. So, if you don't want it to be public don't do it in public," Chwastyk said.
What if you are in the privacy of your own home and you do not give someone consent to post pictures or videos of you and your family?
"Certainly you would have a claim for invasion of privacy under Pennsylvania law," Chwastyk said.
While you may be able to get a post removed, getting the person that posted the pictures to delete them from their phone could be a harder battle.
"The photographs would probably be the property of the person who took them," Chwastyk said. "But again, if it is an employee and they are violating your expressed instructions you may have a claim but it is going to require quite a bit of legal wrangling to force someone in a court of law and have a court order them to delete photos off of their phone."
While Pennsylvania has laws that criminalize invasion of privacy, they don't specifically address social media.
"Those laws are largely focused on lewd photos rather than the type of photos we are talking about here that just might show a family in the course of their day. We have civil claims that can be asserted for invasion of privacy as well but none of them quite fit the bill here either," Chwastyk said.
Progress is being made. Chwastyk says states are adopting more proactive data privacy laws.
"We saw that start in 2018 in California. Virginia and Colorado have passed new privacy laws that take effect January 1, 2023. Pennsylvania's General Assembly has had privacy laws before it over the last few sessions and have not made a lot pf progress, but I am optimistic that as more and more states adopt more comprehensive privacy laws you will see that trend follow nationwide and here in the commonwealth," Chwastyk said.
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