Summary

When you upload a picture of yourself to the Internet, whether it is a ‘selfie’ or a shot with friends, has that image entered the public domain? Can anyone download that picture to their home computer or phone? Post it to another website? Use it in an advertisement?

Late last year, a university student in the UK, Grace Marr, discovered that otherwise inconspicuous selfies she had uploaded to her Facebook page were being used to advertise a ‘no-strings attached’ casual sex website. Grace is not alone. This has happened many times to different people all around the world.

In September 2014, the Australian Law Reform Commission published its sixth report on privacy since 2008, Serious Invasions of Privacy in the Digital Era. The report acknowledged that “a person’s privacy may be invaded in a range of ways”and that this is “increasing with ease and frequency in the digital era”.

In this eBulletin, we discuss the legal protections of copyright, privacy, publicity and defamation both in Australia and overseas, and the extent to which you may be able to control the use of your images once they enter the public domain.

Copyright

In Australia, copyright will subsist in any photograph you take. If you press the shutter, the copyright is yours to enforce, assign or license.

So what about that selfie you uploaded to Facebook?

According to Facebook’s Terms of Service that you agreed to:“You own all of the content and information you post on Facebook”.Sounds fair? But wait…you also "grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook...” and "give us permission to use your name, profile picture, content and information in connection with commercial, sponsored or related content…served or enhanced by us."

Therefore, whilst there may be sound commercial and reputational reasons Facebook is unlikely to use your photographs for anything too risqué, if they do decide to make commercial use of your photographs, copyright law is unlikely to protect you.

Right to Privacy

In 2004, the House of Lords extended the equitable action for breach of confidence in the UK to encompass disclosure of private information, where a reasonable person would find that disclosure offensive. The case they were dealing with involved, amongst other things, the publication of images of Naomi Campbell leaving a rehabilitation clinic.

In 2013, this doctrine offered protection to Edward RocknRoll (his real name), husband of Kate Winslet, who found images of himself, partially naked at a party, in the hands of News Group Newspapers. The images had been posted to the Facebook account of another guest at the party, Mr Pope, and were viewable by approximately 1500 of his friends. Mr RocknRoll's right of privacy and confidence enabled him to prevent News Group Newspapers from publishing the photos.

Both cases relied heavily on Article 8 of the European Convention on Human Rights, which provides for a reasonable expectation of privacy. Such a broad right to privacy does not yet exist in Australia. Accordingly, whilst Australian plaintiffs may be able to prevent the publication of truly confidential material, preventing the publication of embarrassing party pics is likely to prove much more difficult.

A right of publicity

In the USA, celebrities have had some success in preventing unauthorised use of their image by relying on a peculiarly American cause of action - the right of publicity. This right allows individuals to control any commercial use of their name, image or likeness. While the Australian Consumer Law goes some way towards preventing commercial conduct that misleadingly implies a sponsorship or approval that does not exist, there is no true right of publicity under Australian law.

Defamation

Australians unable to access the legal avenues outlined above will be pleased to know there is one last option - the law of defamation.

Since truth is a complete defence to a claim of defamation in Australia, establishing that you have been defamed by an accurate, unaltered photograph of yourself is difficult, but not impossible. The reason for this is that defamation law focuses not on the plain text or graphics published, but on the imputations they convey. For example, a photograph that appeared to show a person leaving an establishment of ill-repute may be defamatory if the subject was merely walking by, rather than attending the venue.

Similarly, as demonstrated by rugby player Andrew Ettinghausen's famous case against the publisher of "HQ" magazine, the publication of a naked photograph without consent can amount to defamation by conveying the imputation that the subject had permitted the photograph to be taken of them for the purpose of publication to a broad audience.

On the other hand, although you may not have consented to it, the broad publication by the media or even a commercial entity of a picture of you using a product or attending a commercial venue may leave you with a bad taste in your mouth, but little ability to prevent publication or recover damages against the entity responsible for the advertisement.

Conclusion

As the examples above demonstrate, the extent to which you will be able to control the use of your image and photographs in Australia will depend on a range of factors, including:

  • who took the photograph (and therefore owns the copyright);
  • the extent to which the copyright has been, perhaps unwittingly, licensed to a third party;
  • the private or confidential nature of the activity shown;
  • the inferences or imputations that would be conveyed to viewers of the image; and
  • the extent to which those imputations would lower people's opinions of you or hold you up to ridicule, having regard to the place you hold in society and the beliefs and opinions of your peers.

The golden rule however, is if you are concerned about the impact that a photograph may have in the wrong hands, or if you feel you may want to commercialise it at some later date, it is always best to think twice before you click "post" or "share".