A few years ago I went to one of these school reunion things. Someone gave me a lift there and back, oh I wish I’d taken the car. Like a lot of people at these occasions I had more to drink than was wise, and the fact that I was experimenting with contact lenses at the time made me look even more bleary-eyed than I actually was in the pictures.
So when they turned up on my Facebook page a few weeks later I wasn’t surprised but duly went around un-tagging them so at least work colleagues wouldn’t see them immediately they did a quick search on me. That’s trivial; people who found themselves on the now-defunct site IsAnyoneUp would have been more seriously compromised. This allowed ex-partners to upload nude and sexual pictures of their estranged other halves and on the face of it there was nothing they could do about it.
Who owns the rights?
Let’s leave the morality of showing your ex with their pants literally down in public to one side for a minute. We’ll probably agree it’s vicious and spend a lot of time huffing and puffing. The question that really matters is what can be done once an infringement of privacy or an unwanted picture once it’s out there.
The law in the UK is quite simple, as indeed it is throughout Europe. Over here we’re covered by the Copyright Designs and Patents Act (1988), itself based on the Bern Convention. This assigns copyright and ownership to the person who created the picture (unless someone is doing it as part of a job when they’re in full time employment in which case the employer owns it; freelancers by default own their creation and license the client to use it, which is why authors, actors etc. get a continuing royalty – the payments continue to be due).
This isn’t good news for someone who’s just found their man boobs splurged all over social media. The person who took the photo technically and legally owns the image. It’s noticeable that on only one occasion did the owner of IsAnyoneUp ever take a picture down when the site was active, and that was when it was a self-portrait – the woman in the pic was able to assert that she owned it and therefore could withdraw it.
Intellectual property lawyer Steve Kuncewicz, head of legal at BooHoo.com, suggests that the nudity involved in the IsAnyoneUp case would lead more to privacy law being invoked than copyright. The real complication both here and in general photographic cases is when the picture is held on a server under different jurisdiction. “As in the Ryan Giggs privacy case, they can legitimately claim that the UK Court's orders simply don't apply to them and it may be that if a photo has gone viral internationally, the subject may want to think about getting in touch with each separate platform in each country,” he says.” Major social networks (Facebook, Twitter) will have rules against this sort of content in any event that could lead to the poster's profile being suspended or deleted, but the problem is that once this kind of content gets out it tends to stay out.
“Otherwise, unless there IS an "expectation of privacy" - which there probably wouldn't in the case of a photo of someone walking down the street, then it is hard to demand that the image be taken down as there's no privacy at work and they won't own copyright. I suppose the point is in relation to the creation of digital footprints, such as checking in on Foursquare for a job interview at a competitor's office!”
So the answer to ‘what do I do if a picture of me is around and I don’t want it there’ will depend on a couple of things. First, ask politely. The vast majority of people, particularly people you know, will help. Then consider whether it violates the terms and conditions of the platform on which it is being published – alert the platform owner and as long as they’re satisfied they’ll whip it off immediately.
If it comes to further action then you need to consider whether it is a real violation of privacy, in which case article eight of the Human Rights Act comes into play and the person posting it has to make a case based on article 12, Right to Freedom of Expression. If it’s not – say as in Kuncewicz’ example of someone being seen walking into a competitor for a job interview and getting snapped – then it’s a tough call.
In my own example, the answer is that I probably should have taken the car to the reunion and stuck to the orange juice.