I love college basketball.  Given that my Missouri Tigers haven’t given me much to talk about, I thought we could discuss the efforts by this upset Duke fan to have her image removed from the Internet captured during the Miami – Duke game that snapped Duke’s incredible 41-home-game winning streak.  You can read about it here.

I am not a Duke basher (nor fan) and I don’t want to pile on this poor fan.  Believe me, after what Kentucky did to Mizzou last night, I felt worse.  This does, however, raise some interesting legal questions.

How do you remove images from the Internet?

1. Copyright

The primary way is to use the Digital Millennium Copyright Act.  If you own the copyright to the image, it is usually pretty easy to get images removed from websites operated in the U.S. and to have the search engines de-index them.  You can read more about the DMCA here.  Generally, if you take the picture, you own the copyright.  The copyright to this image belongs to ESPN and probably the ACC or NCAA.  You know that really quick copyright notice for broadcasts – any use of images is prohibited, blah, blah, blah.  Screen shots would be included.  The fan could ask ESPN to get these images removed.  ESPN may be a little busy, however, because I think Tom Brady may have sneezed.

2.  Invasion of Privacy

There is little expectation of privacy in the stands of a nationally televised sporting event.  Do a search for certain NSFW conduct at sporting events to see how people forget this sometimes.  Also, look at the back of your ticket next time you head to a game.  There is a lot of fine print about the lack of privacy you may experience.  Nevertheless, let’s go through the common law claims of intrusion upon seclusion, publicity to private facts, appropriation of likeness and false light.

Intrusion upon seclusion.  The elements of the claim are: (1) intentional intrusion; (2) upon private affairs of another; (3) that is highly offensive to another.  Being upset at a basketball game is not a private affair.  Most states follow the stand in doctrine which provides that if the media stands where the general public could observe the events, then there is no intrusion.

Publicity to private facts.  To prevail on a claim, the information must not be a matter of legitimate public concern and its publication would be highly offense to a reasonable person.  I am not suggesting comments to a blog are true indications of what is offensive, but a quick view of them reveal that using that screenshot is not highly offensive to most.

Commercial appropriation of likeness.  This requires the (1) appropriation of one’s name or likeness; (2) for a commercial purposes.  Although ads are sold on blogs, the use of the name is not for a commercial purpose.  This cause of action usually applies to celebrities when a store tweets about them without permission or makes video games about them.  If a UNC fan used this picture to start selling t-shirts, then she may have a claim, but not for the use of the image on Twitter or blogs.

Portrayal in false light.  It requires: (1) publishing information that creates a false impression; (2) thereby casting the person in a false light; (3) creating emotional (as opposed to commercial) harm; and (4) the act is highly offensive.  I suspect there is nothing false about this fan’s feelings.  Like I said, no one saw me in my living room with a look of disgust last night, but there is nothing false impression about how she is feeling and why she is upset.

3.  Approach the websites

According to the article, the first image appeared on Twitter.  Under the Twitter Rules, posters are not supposed to abuse others, infringe on the rights of others or violate copyrights.  If you ask nicely and point out how posts violate a site’s terms, sometimes the wesbites will take it down although they may not legally have to.  In fact, in the terms of service, Twitter says it may not monitor the tweets and:

You understand that by using the Services, you may be exposed to Content that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, postings that have been mislabeled or are otherwise deceptive.

In addition to being at the mercy of Twitter’s whims that day, the problem is now that the image is on many other sites as well.

The Streisand Effect

We have talked about the Streisand Effect before.   It’s the name given to the phenomena resulting from increased attention to online posts, stories, websites, etc. only after someone complains about them or raises a legal issue about them.  Had the fan not asked to remove the image, I would not have read about it and would not be blogging about it. Sometimes, the wiser move is to let it go (no, I will not sing it).  It’s a bad business development strategy on my part, but is often the best advice I have ever given.