Court says you don’t need a person’s permission to tag them in a Facebook photo

Lalonde v. Lalonde, — S.W.3d —, 2011 WL 832465 (Ky. App., February 25, 2011)

Mother sought appellate review of the lower court’s order that awarded primary physical custody of her daughter to the child’s father. The mother argued, among other things, that the court improperly considered Facebook photos showing her drinking. This was not good because her psychologist had testified that alcohol would have an adverse effect on the medication she was taking for bipolar disorder. (Seems like there’s no shortage of cases involving drinkin’ photos on social media.)

The court rejected the mother’s assertion that the photos should not be considered as evidence. She argued that because Facebook allows anyone to post pictures and then “tag” or identify the people in the pictures, she never gave permission for the photographs to be published in this manner. The court held that “[t]here is nothing within the law that requires [one's] permission when someone takes a picture and posts it on a Facebook page. There is nothing that requires [one's] permission when she [is] “tagged” or identified as a person in those pictures.”

It might be easy to overstate the court’s conclusion here. Some instances of tagging might be part of something actionable. For example, the posting and tagging of photos in the right context might constitute harassment, infliction of emotional distress, or invasion of privacy. Use of another’s photo on the web without permission for commercial purposes might violate that person’s right of publicity. And of course there is the question of copyright as to the uploading of the photo in the first place — if the person appearing in the photo owns the copyright (e.g., it’s a self-portrait) there is the risk of infringement. But it’s interesting to see the court appear to validate ordinary tagging.

18 thoughts on “Court says you don’t need a person’s permission to tag them in a Facebook photo

  1. FredR

    My favorite part about this story, is the fact that the woman was trying to abuse the law to lie about what she was really doing. What difference does it make if someone saw a picture of her on facebook, or had a photograph in their hand and identified the people in the picture? She was trying to use the system to change the truth. The fact that it just happened to be on facebook, was almost irrelevant. If she was doing something she shouldn't have been doing, the evidence is probably largly against her, facebook or otherwise.

  2. Adam Wasserman

    "Some instances of tagging might be part of something actionable. For example, the posting and tagging of photos in the right context might constitute harassment, infliction of emotional distress, or invasion of privacy."

    True, but none of these instances make it illegal to take the picture in a public place, or to tag it If I understand correctly, it is the subsequent use of the photo combined with the intent to cause harm that might be actionable, not the taking, posting, and tagging in and of itself. Or do I misunderstand?

  3. Bonita Bizarre

    I think in very near future, photographs will cease to be useful as clear evidence of anything. With the popularity of photo manipulation software, changes that once were limited to a very few skilled experts and big budget studios can be made by everyday users at home. Microsoft's recent "cloud" commercials is certainly an indication of that. Although in this particular situation, someone clearly got caught with their hand in the cookie jar (or liquor cabinet, as it were) and was just grasping at straws…

  4. @internetcases

    Bonita Bizarre – Very good point. In this case she made the argument that the photos could have been manipulated, but the court didn't pay much attention to that, saying that she hadn't presented any real evidence that had happened, just made the argument that it was a possibility.

  5. HypotheticalQuestion

    If I may pose a question, does it matter whether the mother in question was a member of FaceBook or not? For instance, if she never became a member of FaceBook, yet they were collecting data about her through their membership, would the members and FaceBook be violating her right of publicity and privacy.

    Does it also matter whether the pictures were taken in a public or private space? Wouldn't FaceBook be profiting by data mining the private life of an individual without consent?

    I ask this because every moron that I know has signed up with FaceBook and they constantly invite me to join. Through their collective idiocy, my right to privacy is being whittled away. This is because the law uses a "reasonable" standard.

    I will never join, but I also know that FaceBook has collected my name, e-mail addresses, and have linked me to a web of acquaintances. I also know that any tagging done by posters is matched up with facial recognition software and becomes available when someone signs up. Do I have a right to tell FaceBook to delete all data pertaining to me?

    1. kmr

      "I also know that any tagging done by posters is matched up with facial recognition……"

      you *know* this?

    2. adele pace

      Good point re: the tracking of people and the collation of data. Eg they figure out you are friends with X and Y, keep this data about you. Is the only practical solutio to have null facebook account and you forbid them to collect data about you either from yourself or third parties who are FB members?? ie it has no information about you, except to identify you and the fact that you dont have info collected about you etc. How else can you prevent them contacting you or collating the data without explicitly asking them not to? I wonder whether that you could stop them contacting you so that they would be prohibited from processing any requests.

  6. Gavin Bollard

    The law needs to be clearer about the boundaries in these sorts of cases because there are individuals out there who are capturing photos of people in public places at inopportune moments (ie: during a strong breeze – or from a hidden pinhole camera) and posting those photos on the Internet.

    They're photos taken in public places. Their copyright is held by the photographer, they're on the Internet and the individual is identified (same as this case) but somehow we all know that they're wrong.

  7. HypotheticalQuestion

    An article posted today reveals the foolishness that people engage in when using social media. One of these days a judge is going to rule that their behavior sets a "reasonable standard" for privacy expectations.
    http://digitaldaily.allthingsd.com/20070814/faceb

    How do we stop this bombshell to personal privacy. (Note that the author used the term IDiot independent of my previous post – perhaps we need to push the term into the public conciousness.)

  8. Socially Legal

    My fear is that people see this as an isolated occurrence. If you use facebook (which let’s face it, is most of us), then you have very little control over the content that is uploaded to the site, and in turn, the consequences that content may have on your life. I don’t very much whether most facebook users have even read the terms & conditions of the website… And yet, they are still bound by them. Food for thought.

  9. Patent Litigation

    In my opinion, people should be asked for permissions before tagging the pictures. Imagine that you are tagged in an illicit picture, what would you do if there were whole lots of comments and nearly all your friends saw it before you? It would certainly be a social disgrace right?

    1. Responsibility

      I would disagree. In the age that we live in you must assume that any action you perform in clear, public view can and will be captured and put on the internet. If you work around this assumption then any illicit pictures would already be known to you. If you dont want your friends and family seeing them, don't allow the pictures in the first place.

      I would compare this to someone getting fired because they were smoking pot with some friends, pictures are taken and they get posted. The person forgets that they have friended their boss on Facebook, which leads to them getting fired. Yea, what they did was in their personal life but they are at fault(in my mind) because they allowed someone who might not otherwise be able to see that picture see it.

      Any thoughts?

      1. adele pace

        Are you talking about the plain sight doctrine. Thus if a police officer is walking along the street and see that you are committing a crime then there is no expectation of privacy?

  10. Owen O'Connor

    It is worth noting that one of the more obscure and unreasonable sections of Facebook’s ToS actually does require consent from all of those tagged in a photograph – section 5.9, “you will not tag … users without their consent”. Clearly if Facebook were serious about enforcing this provision they would add a “seek consent” feature to their tagging function but following the logic of certain CFAA prosecutions (Wiseguys, Drew, etc) violation of this term could become a serious issue.

  11. cardiff space man

    It can't be so simple. In reality shows the people they don't have releases from have their faces blurred. Not only random background people in homes but also passers by in shopping malls and similar public places.

  12. Joni M.

    I’m arriving late to this party, I realize, but you DO have the option of preventing people from tagging you in photos on FB. I have it activated and have for some time. It’s restricted to only YOU can see any photos that you are tagged in. If the silly woman had done this, there wouldn’t have been a kerfuffle.

  13. adele pace

    I think I recall a lady in Melbourne making a privacy complaint to the Privacy Commissioner based on the fact that she was filmed in a tram in an advertisement. I notice that Google Business (the kind of Google Streetview) is now allowing businesses to upload pictures of the interiors of their business to their local place pages. Formerly only Google photographers would take the photos and use photo blurring technology to protect the privacy of persons photographed in the shops/businesses/notels. However now the onus in on the business owner. There are so many different contexts in which people can be snapped in public and have therr photo put on the internet. Both the Federal and State privacy commissioners in Australia have issued guidelines stating where the identity of a person can be worked out from an image, this should qualify as personal information. I think nothing short of consent should be sought prior to publication of photos, but the law only reuires that reasonable steps be taken to provide a privacy notice that information is being collected unless the image may impart ‘sensitive information’ as defined under the Privacy Act. (according to the Commrs)

  14. Buck

    Huh. Just shows you which company is evil.

    Google blurs peoples faces in streetview due to complaints. Wikipedia places personality rights warnings on pictures of people that were taken without the person's approval of their intended use (e.g. people caught on camera while taking a picture of the Pyramids).

    Facebook meanwhile, hides behind the US's free speech laws in order to vomit just about everything you hold personal and sacred to everyone in the world.

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