Many of the newer online channels are bound to remain popular as we adapt to a new normal, so it is crucial to bear in mind their attendant risks, so the author of this article argues.

In this digital age confidentiality faces new threats, and the increased use of two-way video platforms such as Zoom or Microsoft Teams also highlights the need for people to be careful about privacy. The coronavirus pandemic is pushing millions more people into the digital world, and that comes with costs as well as benefits. To consider some of these issues is Claire Gordon, family law partner, Farrer & Co. The editors are pleased to share these views; they don’t necessarily share all views of guest contributors. Get involved in the conversation – email tom.burroughes@wealthbriefing.com or jackie.bennion@clearviewpublishing.com

Confidentiality agreements or non-disclosure agreements (NDAs) are now commonplace, not only in the workplace but also in the personal lives of high net worth and ultra-HNW individuals. Contracts with stringent confidentiality clauses are often expected of household staff to ensure what happens behind closed doors stays there. But with reputations so hard to win and so easy to lose, many couples are using pre-nuptial agreements - bespoke documents carefully tailored to the couple’s needs - for added protection. 

Keep it private, even socially
Before they walk down the aisle, couples will now discuss their views on social media, public profile and what information can be shared and with whom. Those with an Instagram following may feel strongly that they need to maintain their profile, but their spouse may be adamant that they don’t want to appear on the feed. No matter what a couple’s personal circumstances, pre-nuptial agreements and the confidentiality clauses they include can easily be adapted to suit their needs and wishes.

The restrictions in confidentiality agreements may, for example, relate to information about the couple’s private family life, business affairs or financial information which they have shared when preparing the agreement. Each party is required not only to avoid doing anything that might mean that this information becomes public, but they can also be expected to actively take reasonable steps to prevent it becoming public knowledge. 

However, some agreements will be far more detailed and include terms around the use of social media, such as whether images of family members can be shared and with whom, and just how public profiles can be. Cautious of the ever-present risk of kidnapping, burglary and other crimes, an increasing number of UHNW clients work hard to ensure that their online presence is extremely restricted and image free, and they want to ensure that this security and protection extends to their future family, too. Agreeing who can say and show what and to whom is far easier to negotiate when a couple is in love and looking forward to a bright and happy future together than when their relationship is in trickier territory or has even broken down.

Those who take their security seriously will already have in mind the general risk of sharing information online, including images of one’s home. Jigsaw identification (where information from a number of different sources is collated to identify a target) is all too common – as many a footballer has found to their detriment (John Terry’s skiing holiday springs to mind). Similarly, in a lockdown context, a post or TV interview showing a lovely home with expensive artwork followed later by a heartfelt tweet that the individual is “off to visit their mum now that lockdown is lifted” could be a costly mistake.

Additionally, it is important for the HNW and UHNW person to think not only about their own social media approach but also those they spend time with. A husband getting divorced made his previously public Instagram account private, but didn’t realise that his wife knew about his girlfriend and was watching the girlfriend’s (public) account. Images shared of the husband in exclusive nightclubs drinking champagne provided very helpful evidence to the wife and her legal team when the husband was pleading poverty and abstinence.

A new threat – video calls 
The recent exponential increase in the use of social media and video call platforms due to the coronavirus lockdown will have a significant effect on the drafting of NDAs in the future. Whereas specific video clauses rarely featured before, they will now become commonplace for those who properly understand the risks – and the penalty for breaches could well be significant.   

Where a video platform account is connected with other social media accounts, this might facilitate jigsaw identification. But, more importantly, many people are using them without any real thought to security. Often users will ensure that there is nothing embarrassing in the background, but won’t think further about the information they may be unwittingly sharing. While the image you see of yourself on a video call is small, it is worth bearing in mind that those you are speaking with may be viewing the call on a large screen and you will be the main image, so your background will be far more visible than you realise. They may also be able to zoom in or record the call without your knowledge.

As well as the security risks, using a video platform without taking proper protective steps could well mean the terms of a confidentiality agreement are being breached, which can have very real and serious financial consequences. One can easily imagine confidential information being inadvertently displayed in the background on a video call or interview. Whilst a couple is happily married, one would imagine any “penalty” due to an unintended breach would be waived, but should the relationship breakdown, even an unintentional mistake could have expensive ramifications.
 
The terms of a confidentiality agreement will usually allow the parties to share information with close family members. As such, if you are on a video call with your mother, is there a problem? With close friends or family, there may be less concern if there is a breach. But consider the online Pilates class where the instructor encourages everyone to share their video streams afterwards - you might be sharing personal information with far more people than you realise. If someone is self-isolating in a particular property and they have agreed not to post images of that property or of family members, is it unreasonable to prevent them from making any video calls from that property? 

Provided sensible steps are taken to prevent confidential information being shared, one would expect the court to take a pragmatic approach. Actual liability will always depend on the terms and level of care required by the agreement and the level of fault asserted. But, as a minimum, parties are usually expected to take reasonable steps to ensure that information does not get into the public domain.  

What steps can you take?

-- Think about the platform. All video call channels are dealing with a huge increase in users, which may cause technical vulnerabilities, and some may be more vulnerable than others. Do your research and use the most secure;  
-- Check the platform’s privacy and personal information policy, and consider turning off functions you don’t absolutely need, such as sharing contact details from your other social media accounts; 
-- Consider updating agreements with household staff. It may be sensible to incorporate how children’s video chats are to be supervised, such as ensuring that the background is suitable and the call is not recorded;  
-- Control access to your call. The Houseparty app can be great fun, but unless you secure the room you have no control over who joins. There have been concerns about strangers being able to jump in or turn on webcams remotely on some platforms, so perhaps consider platforms that require a password and meeting ID. When you aren’t using the webcam, turn it off or obscure it in some way; 
-- Check your background. Consider platforms that allow you to blur backgrounds or use an alternative image; 
-- Be vigilant for someone recording calls: you are usually notified if they use the platform’s record function, so keep an eye out for it; and  
-- Keep children safe. Schools are asking parents and children to try to ensure that other siblings don’t appear in the background of video lessons for safeguarding reasons. It may also be unwise for children to video call from their bedrooms where personally identifying information could make them vulnerable to grooming, particularly if their video platform is linked to their other social media accounts.

Lockdown has been the catalyst for high usage of online communication, but even as restrictions lift it is likely that we will continue to use technology and social media differently. Many of the newer online channels are bound to remain popular as we adapt to a new normal, so it is crucial to bear in mind their attendant risks. It is well worth individuals spending time to consider these issues in their confidentiality agreements and clauses now, so that they can be ready for the ‘new’ future.