Lenders, Employers, Landlords and even Lawyers are increasingly using publicly posted data and images on the internet.
It has become a prevalent practice, particularly in the US, for such data to be used in family law disputes against cheating or drinking spouses. Lawyers are combing Facebook and other popular social media websites for commentary, photos, and status updates for evidence which may be useful in court cases.
It isn’t therefore merely a matter of embarrassing online photos haunting a person and causing them humiliation. Such photos could potentially affect their eligibility for employment, credit and even their child custody rights depending on how such evidence is treated by a Judge.
In the recent case of Lamond v Lamond, a mother seeking custody of her children sought review of a decision of a lower court which had allowed the admission into evidence of photos of her drinking on Facebook.
The photos were potentially damaging to her case as her Psychologist had testified to the effect that drinking alcohol could have an adverse effect on the medication she was taking to manage her bipolar disorder.
She contended that whilst Facebook permits any person to post pictures and tag or identify the people in the pictures, she personally never granted permission for the relevant photos to be published in this manner.
Although some acts of Facebook tagging may offend the law, in this context the court comfortably concluded that the tagging was legally permissible.
The Court held:
“there is nothing within the law that requires permission when someone takes a picture and posts it on a Facebook page. There is nothing that requires permission when she [is] “tagged” or identified as a person in those pictures.”
However the context in which photos are published and the country in which it occurs could affect the legality of the practice of posting and tagging photos on Facebook.
Whilst there is a well established common law tort of privacy in some countries, by comparison Australian courts have been slower in recognising a well established tort of privacy in Australia at present.
There have been court cases dealing with email pornography, harrassment and defamation, however prior to the Saints girl photo scandal there was a lack of case law specifically deal with the posting of photos on Facebook and other online networking sites.
Model and celebrity Lara Bingle had at one point in time contemplated legal action against Brendan Fevola, with whom she was having an affair, for taking an unwanted photo of her whilst showering, and distributing it online.
Causes of action contemplated by Bingle included an action for breach of privacy, defamation and misuse of her image.
One of the main obstacles for Bingle in bringing a defamation action was that she would have had to have established that she had been defamed by the photos.
This would have required her to have demonstrated that the photos caused people to think less of her, shun or avoid her or expose her to ridicule or contempt.
Even if she could have establisheed that the photos carried a defamatory meaning, it is conceivable that the defendant could have successfully pleaded the defence of justification, namely that the defamatory imputation of nudity was true.
After reforms to Defamation Law in 2005 at a national level in Australia, there is no longer a requirement to prove that what is published is in the public interest, therefore a defence of justification would have provided a complete response to such an action.
The St Kilda Football Legal team in raising a possible defamation case against the Saints girl were pinning their hopes on the unpublished Ettinghausen decision (Ettinghausen v Australian Consolidated Press), a case in which a Judge made a finding that the publication of a nude picture of the rugby league player with his genitals exposed had the capacity to defame him by exposing him to a more than trivial degree of ridicule.
There has been mounting pressure in Australia within the last couple of years to enact a statutory right to privacy in federal legislation.
Australian courts are signalling a preparedness to acknowledge a common law right to privacy, however not to the same degree to which UK and US courts have.
The Victorian Court of Appeal in Giller v Procopets has however recognised the action for breach of confidence in a case where a de facto published nude photos online to exact revenge on his partner.
Under some circumstances people may have a right to prevent images of themselves being published on the internet. In general, a person is free to take pictures of others in public places, subject to a few exceptions, and can use photos taken for personal or commercial gain.
The law can be vague when it comes to defining what might constitute an invasion of privacy and in delineating between public and private space.
The test applied in determining whether there has been an invasion of privacy is whether the subject of the photograph would have a reasonable expectation of privacy.
Taking photos and publishing them on the internet may, under certain circumstances, in certain countries constitute harassment, the tort of infliction of emotional distress, or invasion of privacy.
Additionally, use of another’s photo on the web without permission for commercial purposes might violate a person’s right of publicity if they are a celebrity or public figure, constitute defamation or libel and, in Australia, may amount to the tort of passing off or misleading and deceptive conduct under the Trade Practices Act 1974 (Cth).
Copyright laws have also been another mechanism by which persons have prevented images of them from being published.
The tort of passing of and breach of the Trade Practices Act was used by Lara Bingle in a 2006 Federal Court action against a men’s magazine which published topless photos of her without her consent or permission.
However an action for the tort of passing off or a breach of the Trade Practices Act will only lie where the person suing can establish that the publisher made some type of misrepresentation in the course of trade or commerce.
In the 2006 Bingle court case the publication of the offending photos along with captions wrongly suggested that she had been given her permission and consent to the publication of the photos as part of a promotion of Australia as a tourism destination.
The law in this area is complex and lacks clarity, involving overlapping causes of action and expensive legal advice and possibly court action, which is probably unrealistic for the average person.
People need to be aware of the dangers of publication of sensitive personal data and images on social networking sites. Millions of people tag photos everyday on Facebook and sharing photos has become a popular activity on social networking sites.
Facebook have even launched facial recognition software feature which suggests people’s names to tag in photos posted.
Whilst people can customise their privacy settings on Facebook and disable their name from appearing in suggested tags, users cannot prevent friends manually tagging them. A person must therefore register on Facebook in order to disable tagging to prevent their privacy being violated. The growing sophistication of image searching means that images of people will be more readily accessible to the determined searcher.