Infringement of privacy, defamation and data protection are some of the legal issues at stake.
For Robin Freer, the general manager of St Mary’s Inn near Stannington, in Northumberland, it is ultimately about making sure customers feel comfortable.
“We love sharing customer experiences on our social media platforms, but we always ask permission first and, of course, let the guest see the image, too,” he explained.
Victoria Anderson, a solicitor at media law firm Carter-Ruck, said that if pub staff take an image of a customer and later publish it online without their permission, there could be an infringement of their right for respect for their private and family life.
This does not just apply to online publications, it could be on promotional material too.
Anderson explained: “When assessing whether information falls within the ambit of an individual’s private life, the courts have held that the question to be answered is firstly whether or not in relation to ‘the disclosed facts the person in question had a reasonable expectation of privacy’.
“If the answer to that is yes, whether there was an infringement of that reasonable expectation, which will include consideration of the publishers’ right to freedom of expression.”
Pubs should seek consent from people pictured in images before publishing anything, she said.
“For the purposes of privacy claims under the law of England and Wales, the question of whether a photograph of a customer in a pub is likely give rise to an actionable claim is very much dependent upon whether the image discloses private information about that customer,” she said.
Operator Robin Freer, from St Mary’s Inn, explains what his staff do in these situations and offers some top tips:
Do - Keep it friendly when we ask and always mention: ‘if you’re comfortable with it, of course’ so that they know they have an ‘out’. There's nothing worse than that sort of pressure and we do not want anyone to feel uncomfortable with us sharing their image.
Don’t – Of course, do not post images of anyone without their consent and show the image to the guest first. We do not take the image without their consent, either.
We don’t assume that it is OK, even with our regular customers. And just because we see someone taking a photo of their own, or of themselves while at the inn, we do not assume that it is then OK to take our own pictures of them either.
Another legal issue pubs could experience is a customer objecting on the basis of a breach of data protection laws.
The EU General Data Protection Regulation and the subsequent Data Protection Act in 2018 has put members of the public in a better position to make a claim about the unauthorised processing of their personal data.
“The Information Commissioner’s Office has clarified that where the individual is the focus of attention in a photograph or where the use of the image will have a resulting impact on that individual, then the photograph is likely to be considered personal data under the GDPR,” Anderson explained.
The next legal quagmire you could find yourself in is a defamation claim. While it may seem tempting to ask your social media followers for help tracking down a customer you suspect has done something wrong, this could create issues.
“In the event that a photograph is published by a pub of a customer that conveys a particular meaning, a customer may also have a claim in defamation,” Anderson said.
“Of course, any claim by a customer would be subject to the other requirements for a claim in defamation, which include that the publication must have caused, or be likely to cause, serious harm to the customer’s reputation.”
She added: “The pub in this situation would also be able to seek to rely on a number of defences, including perhaps most importantly the statutory defence of public interest, which is available where the defendant can show that the statement was on a matter of public interest and that they reasonably believed that publishing it was in the public interest.”