Posting Facebook Photos With Nasty Comments Not Invasion of Privacy – Olsen v LaBrie

Since the introduction of Victoria’s Workplace Bullying Laws (aka Brodie’s Law), victims of bullying can now apply for intervention orders which extend to activities that occur in cyberspace.

A victim of bullying can also apply for an Intervention order, depending upon the context and circumstances in relation to various kinds of related behaviour which are deemed unlawful under Victorian law. (eg the Family Violence Protection Act 2008 (Vic) and Personal Safety Intervention Orders Act 2010 (Vic).

Intervention Orders can cover behaviour or conduct that takes place through electronic communications and therefore deals with email in addition to the posting of certain information on internet forums and social networking sites.

As discussed previously, there are other laws which plaintiffs have tried to use to prevent the posting of photos and offensive material on the internet, depending on the context and type of material.  (eg copyright law, defamation, trademark, publicity laws in the US, and privacy law - Dikileaks Legalities AFL Photo Scandal)

Laws on the internet differ from country to country and will be interpreted differently. However, in a recent US case, Olsen v Labrie,  Aaron Olsen was unsuccessful before a Minnesota Court in applying for a harassment order against his Uncle, the Respondent Randall LaBrie.

Olson argued that posting family photos on Facebook accompanied by text was harassment under Minnesota law and constituted a breach of his privacy.

When Olson discovered that LaBrie had been posting various family photos which included himself, he emailed Olson, who wasn’t a Facebook friend, requesting that the photos be altered or removed so that his image was deleted.

As the photos were tagged, they identified his Uncle on Facebook, even though he wasn’t a friend of LaBrie’s on Facebook. Even though the Respondent had adjusted his privacy settings to private,  any member of the public could access his Facebook page and view the photos by conducted a name search. (Facebook Privacy Protected Photos Accessible & Facebook Photo Privacy Case and Tagging)

La Brie’s first response was to email his Uncle back telling him not to use Facebook if he was offended by the photos, prior to eventually acceding to his Uncle’s request to remove both the photos and tags.

Olsen applied to the Court for  a non-harassment order, requesting that his nephew LaBrie refrain from harassing him and his child, and preventing him from coming within a certain distance of he and his children. Within his application, he also referred to abusive commentary made by LaBrie with regard to himself which he argued could be viewed as both threatening and/or obscene.

The Court refused to grant Olsen’s restraining order on the basis that the photos posted were innocent family photos and viewed the accompanying text as constituting at the most “mean disrespectful comments”,  falling short of harassment.

The Court held that for material to constitute harassment, under the definition of harassment in Minnesota legislation, the words must have a substantial adverse effect on the safety, security, or privacy of another.  The Judge found that “innocuous family photos”  didn’t satisfy this test.

It is a natural human tendency for memories to fade and for people to forget things that have happened in the past.  There is an argument for having our past deeds or embarrassing snapshots ‘forgotten’ given individual’s different sensitivities.

The French doctrine ‘the right to be forgotten’ speaks to the right to redemption or a fresh start.  The modern age and the internet, which never forgets, has changed the game, threatening that human desire not to have embarrassing photos and nasty family tirades plastered all over very public social networking sites.

There have been some extremely disturbing practices involving the submission of photos to sites such as www.submityourex.com and www.exgfpics.com which graphically highlight how images can easily proliferate over the internet, causing untold damage to the person depicted. (Sexting Case to proceed)

As discussed previously, harassment, bullying, discrimination and criminal law are discrete but interrelated concepts in Australia and there is no comprehensive uniform national definition of bullying. (Gillard supports federal workplace bullying laws and cyberbullying)

In the context of workplace bullying, Draft Codes are being prepared to arrive at a definition of bullying (Model Code of Practice on Bullying, Preventing And Responding To Workplace Bullying),  as part of an attempt to harmonise Occupational Health and Safety Laws, Regulations and Codes across Australia.

There is a concern by Employer Groups that allowing bullying to be defined by a single incident would open the floodgates to frivolous claims. (Should workplace Bullying arise from a single incident)

Related posts:

  1. Privacy Protected Facebook Photos Accessible
  2. Facebook Photo Privacy Case And Tagging
  3. Facebook Photos Stolen For Internet Dating Site
  4. Judge Sets Dangerous Legal Precedent Regarding Facebook Photos
  5. Commonwealth Statutory Cause of Action for Serious Invasion Of Privacy
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