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A child was bullied and harassed - online and in person - after a company used a video of him crying in an advertising campaign without his consent.
Now the Privacy Commissioner has ruled the company, which has not been named, effectively turned the young boy into a “meme for profit” and had breached his privacy in doing so.
According to a decision released this week, the original video was uploaded to social media without consent from the child or his family. It is unclear why the child was crying or who took the video and posted it online, but it continued to circulate despite the family’s efforts to take it down.
Several months later a New Zealand-based organisation decided to use a still image of the boy crying as well as a quote from the video in an advertising campaign.
The company took a social media video of a boy and used it in a campaign without consent. Photo / Stock image, 123rf
Due to the significant reach and social media presence of this organisation, the boy was re-victimised resulting in a resurgence of online and in-person bullying and a rapid decline in his mental health.
After being approached by the family the company removed its advertising from its social media accounts.
However, the family were unable to reach a resolution with the company and complained to the Privacy Commission, which investigated the incident.
The company told the commission the image was effectively fair game as the video had already gone viral, it didn’t know the child was a minor and other people had reposted the video without consequence.
Now, Privacy Commissioner Michael Webster has ruled it was obvious from the video the child was a minor and extra care needed to be taken when distributing information about children.
Webster said the company took no steps to contact the boy’s family for permission to use his image, which in itself was a breach of the Advertising Standards Code.
“This is a David vs Goliath case, where the onus and due diligence was on the organisation with a team of professional communication experts,” he said in his findings.
“Ignorance of the situation is not an argument to decision making which ultimately causes harm.”
Webster said the video itself was not readily available after the family sought to have it taken down and the company would have had to track it down specifically.
“Just because information is publicly available, does not make it automatically ok to reuse or republish for your own purposes,” Webster said.
“There can be significant impacts on all individuals, and particularly those who are more vulnerable such as minors.”
The finding notes that agencies needed to be aware of their obligations under the Privacy Act and in this case he found the company had breached.
Webster suggested organisations stop and think before sharing information.
“Would the individual be surprised to find you are using or sharing their information in this way? Are there any factors which make them vulnerable, or you suspect they would not want the information shared? If the answer is ‘maybe’ or ‘yes’, that might be a good time to reassess what you’re using the information for,” he said.
The agency apologised for the harm caused, and a financial settlement agreement was reached between the parties.
Jeremy Wilkinson is an Open Justice reporter based in Manawatū covering courts and justice issues with an interest in tribunals. He has been a journalist for nearly a decade and has worked for NZME since 2022.
