Rights of Photograph an Individual

[The_Traveler]

He can't do much against the individual but he can attempt to influence the 'deep pockets' web site not to be part of the 'slanderous' or 'defamatory' activity by hosting the picture and the name.


From the Myspace Terms of Service

Please choose carefully the information you post on MySpace.com and that you provide to other Users. Your MySpace.com profile may not include the following items: telephone numbers, street addresses, last names, and any photographs containing nudity, or obscene, lewd, excessively violent, harassing, sexually explicit or otherwise objectionable subject matter.

Despite this prohibition, information provided by other MySpace.com Members (for instance, in their Profile) may contain inaccurate, inappropriate, offensive or sexually explicit material, products or services, and MySpace.com assumes no responsibility or liability for this material.

If you become aware of misuse of the MySpace Services by any person, please contact MySpace or click on the "Report Inappropriate Content" link at the bottom of any MySpace.com page.

MySpace.com reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including private messages) by you, or to restrict, suspend, or terminate your access to all or any part of the MySpace Services at any time, for any or no reason, with or without prior notice, and without liability.

1. Content Posted.
   1. MySpace.com may delete any Content that in the sole judgment of MySpace.com violates this Agreement or which may be offensive, illegal or violate the rights, harm, or threaten the safety of any person. MySpace.com assumes no responsibility for monitoring the MySpace Services for inappropriate Content or conduct. If at any time MySpace.com chooses, in its sole discretion, to monitor the MySpace Services, MySpace.com nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.

 

[Mike_E]

And the person just ignores it. So $80 to achieve nothing?
Ok. He ignores it so you try to prosecute. If you can track him down and gather the required proof you might make a case and it'll only take a couple of years... and the Courts (if it ever gets that far before you give up) will just tell the person not to do it again. He walks out with a grin and you get a huge bill.
I've been to Court more times than I like to think about - and I've sued people. One big case took five years in the High Court and I only just won on a technicality.
These days if I see one of my old pictures being used without permission (and I ocassionally still do) I just shrug and walk away. In a 100 years who'll care anyway?

I hope that I do! Usually a letter on the partners letterhead is all it takes unless there is some 'principal' involved. If you know someone or know legalese you can get out much cheaper.

mike

 

[skieur]

Well, to let you know how the law works in Canada and probably in a very similar fashion in US, let me cite an example.

A crowd was videotaped going into a building and the camera person zoomed in on one person who perhaps unknown to the camera operator was a socialite and important in the community. The video was not used and sold as outtakes to another station. So far, everything was legal. The socialite was legitimately filmed in a public place.

However the station that bought the footage, edited it into the opening of a complete strip show. The socialite sued for damages for the impression created that she was entering a location where a strip show was being performed. She won and the award was into the $60,000 area and Canadian law suits have caps and are much lower than in the US.

Bottom line is that if you were in a public place, your photo was probably taken legally. How he used it however may constitute libel, depending on the details, since Internet use is considered publication. If indeed the details support libel, then his site provider as the "publisher" may also be equally guilty and therefore part of any lawsuit and recovery of damages.

It may be worth pursuing. It depends on the details and "how" he discredited you.

skieur

 

[Hertz van Rental]

he can attempt to influence the 'deep pockets' web site not to be part of the 'slanderous' or 'defamatory' activity by hosting the picture and the name.

The key point here is 'slanderous or defamatory'.
You have to prove that the actions of the poster is at least one of these.
For example, you post a picture of someone with their name and write 'this person is a murderer' underneath it. The person sues you for libel (libel is written, slander is spoken). They will win and get a lot of money from you unless you can prove they are, indeed, a murderer.
You post a picture with a name only this time you write 'in my opinion this person is a murderer'. The other person would have to prove that this statement damaged their reputation in order to win, and to defend yourself you would only need to show that you had 'reasonable grounds' for holding your opinion. Your reasons might be completely wrong and then all you do is apologise, remove the image and post your apology. They would almost certainly get nothing.
Again, you post a picture and name with the caption 'this person loves puppies'. They would be unable to do anything as under Law this would in no wise be considered defamation of character - even if they loathed puppies.
Similarly, if you posted a picture and a name but made no comment then again they would not be able to do anything. Unless, of course, the website itself (that is, the context) caused defamation by association.
Law is not about right or wrong, it is just about who has the best argument.
And most contracts or terms of service have more loopholes than words - which is one reason there are so many lawyers

 

[The_Traveler]

The key point here is 'slanderous or defamatory'.
You have to prove that the actions of the poster is at least one of these.
And most contracts or terms of service have more loopholes than words - which is one reason there are so many lawyers

No, the key word here is in-house counsel. Their job is to keep the company out of any litigation. If they see that the person 'defamed' has any chance of even bringing suit, they will get their company out of the way by removing the offending picture and let the action go on between the two individuals. Even frivolous lawsuits that they win cost companies large amounts of money and the job of an in-house counsel to make certain that they don't get sucked into one.

The simplest, cheapest way out is to enforce the ambiguous Terms of Service and remove the picture. The goal of the defamee is to make the company believe that is the cheapest way out that will not violate the Terms of Service.

 

[Hertz van Rental]

The goal of the defamee is to make the company believe that is the cheapest way out that will not violate the Terms of Service.

This generally only works if the site is based in North America or parts of Europe. And frivolous law suits are an urban myth. In the UK a Barrister will charge £1,000+ per day just to read the evidence. I'm sure the costs in North America are equivalent. Internet providers know that few people can actually afford a big legal battle so although they may remove borderline or questionable postings as a courtesy if asked nicely, don't ever imagine that they must do it.

 

[Mike_E]

LOL There are more lawyers in the US than there are brick layers. The supply keeps the cost down. Throw into that the number of paralegals that have access to company letterheads...

If you keep your head about you and go through the proper motions, you should have no trouble (unless it has become a matter of principal).

Businesses don't fear people, they fear loss of capital. If you make $100 per person you shoot, would you rather have someone tell 50 people you are a bad photographer or have to pay someone $5000.

The trouble of course is when that someone tells 50 people a day for ever because they are ticked.

This brings us back to it being a good idea to have someone mediate your differences and smooth over any hard feelings because you really don't want someone making a crusade out of you.



mike

 

[The_Traveler]

This generally only works if the site is based in North America or parts of Europe. And frivolous law suits are an urban myth. In the UK a Barrister will charge £1,000+ per day just to read the evidence. I'm sure the costs in North America are equivalent. Internet providers know that few people can actually afford a big legal battle so although they may remove borderline or questionable postings as a courtesy if asked nicely, don't ever imagine that they must do it.

Sorry, you are wrong.
I'm not talking about the ISP. ISPs are sort-of common carriers. That is why you can't sue an Internet company for having communications channels used by child pornographers.

I'm talking about the ASP, the Application Services Provider, the company who actually owns and provides the code that runs the site - like Facebook. That is a crucial difference. ASPs are responsible for their content and, to some degree, for the viewer-contributed content they host.

ASPs write their TOS to notify the users not to post materials damaging to others and to deny responsibility if users do. But, if the ASP does not remove damaging materials once they are notified, then they become party to the issue, whatever their denials, precisely because they have neglected to enforce their own TOS and can be seen to have exacerbated the damage to the individual claiming the damage.

This is exactly why the content terms of the Terms of Service agreements are written; so that the companies can remove materials that put them in jeopardy of being named in a suit by someone.

I speak from some experience here as the former owner of an ASP. We didn't want to be party to any problem that originated outside of our area and so our counsel were careful to respond to any complaint of material posted on our site that had the potential for damage to a user.

And frivolous law suits are an urban myth.

Do a search on '54,000,000', 'pants' , 'lawsuit' and you'll see whether these are a myth.
Frivolous law suit or not, law suits are extraordinarily expensive to defend.

 

[THORHAMMER]

i just want to see the picture now.... lol

 

[bluetruth]

You have two choices - see a lawyer, which will cost a lot of money and probably get you nowhere in the end, or live with it.
However, the way the question is phrased and worded inclines me to think that this is not a real situation but a purely hypothetical one that has been posted here to trigger discussion. Possibly as a form of market research to guage people's reactions, or someone is gathering data for their College homework :mrgreen:

Very close to the actually project. I'm actually performing a few social experiments (not all of them photo related) to see how people react and resolve (as necessary) to certain situations. This one is a social experiment for social network sites like MySpace, Facebook, and Friendster (interesting enough if you Google "social network" Barack Obama is 7th on the list). The experiment is to see how far I need to push a social network to remove a photo without actually consulting a lawyer.

Part 1 was, I pose for defamatory picture and have a friend post it, then try to have it removed at all costs (at least almost all costs). Part 2 of the experiment is have a friend pose (doesn't have to be defamatory) who doesn't have a Facebook or Myspace account and post their picture to see if they'd remove the picture because "she's part of the witness protection program" (she isn't really, otherwise it would be stupid to even pull such a stunt). Since I've been stuck on part 1 with Facebook for the past 2 weeks, I am still yet to mess with part 2. I purposely draw out my responses by 2-3 days so that I have time to think about how I can respond to their messages.

Though the photo really does exist... I'd rather not share it more than I actually have already. I prefer to remain behind the camera unless it's unavoidable, in which case this scenario was unavoidable since I am usually able to twist my words so that they're 100% honest but at the same time slightly misleading for the assumptions people can make from implied meanings. Hence, as you established, my careful wording of the post to make it seem hypothetical which was done in hopes that people wouldn't actually ask to see the photo, lol.

 

[The_Traveler]

Interesting idea.

And I guess that you wanted some ideas about how to go about it from this discussion?

Before you continue, I suggest you look up the term 'tortuous interference.'

If someone had put my people to work in a sham process - and we found out about it - we'd enter a suit for tortuous interference, claim actual damages equal to our hours expended plus punitive damages, then let the experimenter sort it out with his own attorneys.

 

[Mike_E]

But I don't mind, sounds like fun!

Please keep us informed on how things are going.

mike