Privacy and Fair Use Issues in Social Networking Sites

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Table of Contents

On Personal Images
On Selling a Photo
The Smash Hit Composition
References

On Personal Images

Conceptually, section 2i of the “Terms of Use” (Classmates Online, Inc., 2010) grants Classmates.com the sweeping right to use any and all personal information in advertising on third-party sites: “Classmates may create applications or other tools for use on various third party websites and devices, such as Facebook or the iPhone, through which all or a portion of the information that is publicly displayed on the Site may be shown to the users of those websites and devices” (p. 8). On the face of it, the sole defense a user of the site has is to fine-tune his Account or Profile settings so as to limit access to photos solely to those one acknowledges as “friends” or “classmates”. Such a sweeping “right of use” provision applies whether one is aware of them or not. After all, Classmates can claim that merely signing on or browsing the site implies having read the Terms and Privacy Policy, besides constituting agreement with all provisions of the terms of use.

That Classmates.com does not wantonly engage in this practice lies in the legal protection afforded individuals who are neither celebrities nor public officials. Anonymizing the unwanted publicity by captioning photos as plain “Satisfied User” immediately violates the doctrine that privacy is violated when a reasonably prudent man can identify a user from the information provided. As it happens, a picture can be even more revealing than a full name like “Joe Smith”. Nonetheless, captioning the photograph as “named Satisfied User” compounds the violation of privacy.

Existing tort law on invasion of privacy counts four broad provisions. It is the fourth that applies to the question of using Site users’ photos without formal consent: “Appropriation: the unauthorized use of a person’s name or likeness to obtain some benefits.” This usually means commercial benefit which is the goal of all branded product/service and Web site advertising. In turn, identifying a Classmates.com user as “Barack Obama, Satisfied User” falls under the third category permitting the bringing of legal action, “False light: the publication of facts which place a person in a false light, even though the facts themselves may not be defamatory” (Prosser, 1960, 384). Given how badly approval ratings for the president have fallen amidst the worst recession since the 1930s, by broken campaign promises, and by White House flip-flopping to try and ride the populist bandwagon, a social networking user has valid course of action to accuse Classmates.com of defamation.

Constitutionally, the basis for privacy rights were laid by the protections afforded the citizenry from state actors infringing on the rights to assembly (First Amendment), unreasonable search and seizure (Fourth), and due process (Fourteenth). The specific jurisprudence springs from state laws and judicial decisions which prevent the use of a person’s identity, name or photograph (“likeness”) without consent in advertising, brand names, packaging, merchandising, or even works of fiction. The protection afforded is just as robust as those that prevent brand name or trademark infringement. Neither can the First Amendment be used as a defense for unauthorized use since there is no legitimate public interest in learning the likeness and identity of a private citizen.

In addition, a Site user can allege intentional tort for infliction of emotional distress and negligence under the “res ipsa loquitur” doctrine.

The above discussion applies to question 3. The subject of the photograph – wife or friend of the Site user, even an anonymous individual in a street scene – all enjoy the rights to privacy and protection from unauthorized use of their likeness for commercial gain.

On the other hand, Classmates.com specifically absolves itself of any responsibility for the acts of third parties: “…this Privacy Policy does not apply to the practices of companies that we don’t own or control or to people that we don’t employ or manage.” Which loophole means an outsider browsing through the site can copy photos to his own hard drive and employ it for commercial purposes where U.S. law do not apply.

On Selling a Photo

(Question 2) The provision on third-party offers (section 2b) applies. The most Classmates.com can do is hand over “…financial and/or personally identifiable information” to marketing partners or companies running joint marketing and promotional offers with United Online Inc., mother company of Classmates. While the site claims no responsibility for the actions of such third parties, knowingly selling a user’s photo for its own and the commercial gain of Philip Morris also violates privacy rights.

The Smash Hit Composition

The wording of the question is silent on where the hypothetical Classmates.com user recorded the “smash hit” and whether or when he obtained the musical work and recording copyrights. One must assume he at least filed the musical work copyright since that was essential to the transaction with Sony. Copyright owners enjoy several exclusive rights, among which is being able to license distribution and performance/playing of their works and receive royalties for it. Hence, Classmates.com can sell the work, too, provided the deal with Sony did not involve exclusive worldwide or American rights and as long as Classmates obtains a license. The fact of unrestricted access, presumably for free, does not prevent the composer from subsequently issuing licenses and availing of royalty payments.

References

Classmates Online, Inc. (2010). Privacy policy. Web.

Prosser, W. (1960). Privacy. 48 Calif.L.Rev. 383.

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On Personal Images

On Selling a Photo

The Smash Hit Composition

References

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