Most Read Contributor in United States, August 2016
Having an embarrassing photo posted on FaceBook is bound to
happen to everyone. In fact, it is such a common occurrence that
FaceBook even created a feature to allow the subject to
"untag" his/herself from the photo in order to keep it
off of his/her own Facebook feed. But what happens when someone is
habitually posting embarrassing photos of you on Facebook? An
18-year-old Australian woman is testing how privacy laws apply in
this age of social media by suing the users that she claims have
posted more than 500 embarrassing photos of her on Facebook,
without her consent. The culprits – her parents.
The images – childhood photos.
The woman is claiming that the photos are "violating her
rights to a personal life" because they depict stages of her
life including getting her diaper changed as a baby, potty training
as a toddler, or running around naked as a young child. Despite
having asked her parents to take down the photos and cease
from future posts, her parents have taken that position that
because they took the photographs they have the right to reveal
them to the world.
Although this case will be decided under Australian law,
it is likely that similar suits will be subsequently filed in
the States. Most states have laws which afford individuals legal
privacy rights and the ability to take independent action if those
rights are violated. These laws typically include the "public
disclosure of private facts" as a privacy violation
provided that the subject had a reasonable expectation
of privacy regarding those facts.
That is where this case, and future cases, could get
complicated. The question raised is whether someone has a
reasonable expectation of privacy when they consent to have an
embarrassing photograph taken knowing that they picture may very
well end up on social media. The more complicated question will
also have to be answered as it applies to minors – if a child
under the age of consent is photographed by their parents, those
legally allowed to consent on the child's behalf, can the child
argue later argue that she or he had a reasonable expectation
of privacy or revoke consent? Simply stated, the courts will soon
face the task of determining where the line exists between
private family or childhood moments and the present social media
culture of publically sharing every aspect of our lives.
Until these questions are answered, this case should serve as a
cautionary tale for parents, siblings, or friends that like to post
embarrassing photos of others. If the subject asks you to remove
the photograph, consider abiding by such request. If not, you
could find yourself facing the next social media privacy
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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As we have previously discussed, if you want your electronic contracts to be enforceable, it is a best practice to require the counterparty to affirmatively accept the contract by checking a box or clicking a button.
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