I Want My Selfie Back!!!

by JD Supra Perspectives
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[The latest in our series in which we ask JD Supra contributors to address the perils, legal or otherwise, of online citizenship today, and all that entails. Stay tuned for additional in the series...]

Recently, several high-profile celebrities (for example, Jennifer Lawrence and Kate Upton) have become the latest victims of Internet privacy rights violations. In those cases, hackers obtained private, risqué photographs of the celebrities and disseminated them for publication over the Internet. In response to the photographs, lawyers have sent the obligatory cease and desist letters and appealed to the community to ignore the illegally obtained photographs. Only time will tell whether the photographs will ever be permanently deleted from the vast domain that is the World Wide Web.

...until more legislation is enacted to govern the content of the Internet, it may be advisable to avoid the camera or, at the very least, keep your clothes on when in front of it.

Although you may not have any Oscars or a photo on the cover of Sports Illustrated, what if you become a victim of a similar violation of privacy? Is there anything that you can do?  What is your recourse?  Unfortunately, in this free and open Internet age, the available remedies for misappropriation of photographs or other electronic information are somewhat limited. However, if your selfie has fallen into the wrong hands, the following statutory acts and/or common law theories may provide some relief:  

Stored Communications Act

The Stored Communications Act makes improper access to an electronic communication a crime. According to the Act, if a person “intentionally accesses without authorization a facility through which an electronic communication service is provided” or “exceeds authorized access to the facility," such actions shall be punishable by fine or imprisonment if the access is criminal or tortious in nature. Consequently, if a hacker improperly accesses an electronic account, he or she may pay the price behind bars. The Stored Communications Act does not, however, create a private right of action on behalf of the wronged party.

Copyright Infringement

The Copyright Act provides one potential avenue for removal of any private photograph disseminated over the Internet. The Copyright Act provides that "[c]opyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression . . . from which they can be perceived, reproduced, or otherwise communicated. Accordingly, a photograph is an original work subject to copyright protection.

Moreover, the owner of a copyright has the exclusive right to reproduce the copyrighted work; to prepare derivative works based on it; to distribute copies of the copyrighted work to the public; to display the copyrighted work; and to authorize any of these uses of the copyrighted work. Copyright initially vests in the author of the work and subsists from the point of creation of the work.

Accordingly, if your copyrighted “selfie” has been improperly published on the Internet, you may be able to seek removal of a private photograph by pursuing an injunction under the Copyright Act. See 17 U.S.C. 502 (“Any court having jurisdiction of a civil action arising under this title may … grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.”).

Invasion of Privacy

Section 652A of the Second Restatement of Torts provides that “one who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other.”  (Most, if not all, states have adopted a common-law invasion of privacy tort similar to the Restatement). The right to privacy is invaded by “unreasonable intrusion, appropriation of another in name or likeness, unreasonable publicity of another's private life, and publicity which places a false light before the public.” According to Section 652B, a person is liable to another for invasion of privacy if a person “intentionally intrudes ... upon the solitude or seclusion of another or his private affairs or concerns, if the intrusion would be highly offensive to a reasonable person.” Misappropriation and publication of a risqué selfie is likely to constitute a “highly offensive” intrusion entitling the subject of the photograph to relief.

Conclusion

For the most part, a person’s ability to restrict the use of an illegally obtained photograph is limited. The subject of the photograph usually needs to know the identity of the hacker (thief) to enforce his or her rights. Oftentimes, in the age of the Internet, such an identity is not easy to find. Accordingly, until more legislation is enacted to govern the content of the Internet, it may be advisable to avoid the camera or, at the very least, keep your clothes on when in front of it.

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