Podcast: Is it Illegal to Post Pictures of Other People Online?

Navigating the intersection of etiquette and technology.
Nov. 22 2011 3:21 PM

Don't Post Pictures of My Kid on the Internet, Part 2 (Transcript)

Emily Yoffe:  Should the kids stay in the picture? Part two.

Farhad Manjoo:  I’m Slate’s technology columnist, Farhad Manjoo.

Emily:  I’m Emily Yoffe, Slate’s Dear Prudence advice columnist.  And this is Manners for the Digital Age.

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Farhad:  Emily, last month we ran an episode about a woman who posted pictures from a children’s birthday party on her blog. Some of those pictures showed not only her kids, but other people’s kids. And one parent who wasn’t quite comfortable with that asked that the pictures be taken down.

We received a number of letters in response to this episode that were critical of the way you and I came across. One listener wrote:

“Dear Emily and Farhad, I must say I was very disappointed in your dismissal of the mother who did not want her children’s images posted online. These are her children and she does not have to provide a reason. Frankly, I am baffled that the friend chose to ignore what was a rather benign request, and instead said she would give the matter some thought.

The fact of the matter is this woman did not have the right, if you will, to post images of children not her own. They are not her kids. It’s as simple as that. My question to her would be why is it so important that she include other people’s kids? I found it curious that neither of you asked her that question.” Signed, Ken.

Emily, some who wrote in, like Ken, talked about “rights” – either the rights of the woman who wanted the photos taken down or the rights that the woman who took the photos did not supposedly have. One listener even said he would sue in that situation.

In a few minutes, we’ll talk to an attorney who specializes in photography and the law. But first, let us clarify our own positions. Emily, what did you say in response to that letter?

Emily: Well, I was surprised that there was so much reaction denouncing both of us for taking the same stand, whereas I felt we disagreed in a fundamental way. I agree with one point this letter writer makes. I don’t think you need to articulate the crazy, paranoid reasons why you don’t want your kids’ pictures on the Internet.

In fact, being forced to defend them probably does make you sound a little crazy. You just don’t want your kids’ pictures on the Internet. I think that’s good enough, and I kind of feel the same way. I was sympathetic to the woman who didn’t want her kids’ pictures posted, but I thought you made some very good points, Farhad, that that feeling of yours cannot be the overriding principle at any kid’s birthday party and that, in the world we live in, you can’t absolutely control this.

Farhad: I guess I was wondering about the woman’s reason for this. I was curious about why she was so adamant that her kids not appear on the Internet. If she has no reason, or if her reasons are a little crazy or if she just simply hasn’t thought about it but just does not want her kids’ photos on the Internet, that’s fine. My problem with it was that she was basically creating a hassle for all these other parents at the party who did not know beforehand that she had this policy.

If you’re going to go to an event where there are a lot of photos being taken, it’s reasonable to assume that a lot of those photos are going to end up on Facebook because that’s what happens at something like a party these days – at any kind of party, especially a kid’s birthday party.

You should announce beforehand that you don’t want photos of your kids appearing on the Internet and take some action to make sure your kids aren’t in photos.

Emily:  I agree with that. I think the person with the problem needs to articulate the problem. I have cats. When I invite people over for dinner, I don’t always remember to say, “In case you’re allergic to cats, I have cats.” If you have a cat allergy, let people know that in advance.

So if you have an allergy to your kid being photographed and it being posted on Facebook, before the party, you need to say, “Look, can you do me a favor? Try to keep my kid out of it, or when photo time starts, put my kid behind you.” But I think you also have to accept that you can’t utterly control this unless you leave your kid at home.

Farhad:  I agree with that. The specific case here was that the person who didn’t want her kids in the photo announced it only after the photos had been taken and had been posted, and she wanted them taken down.

Emily:  Okay. But that’s part of the etiquette of this new world we’re living in, because it didn’t used to be when you went to a social event at someone’s home you thought, “Of course, everything I do here is going to be posted online for the world to see.” That just wasn’t part of your thought process, and I think we’re still working our way through that.

I think it’s fair that she was kind of taken aback. “Whoa! Wait a minute. My kid was over your house. That doesn’t mean I want in perpetuity my kid’s face on the Internet.”

Farhad: I guess what I was saying is that, at least for a kid’s birthday party, we’ve crossed that threshold where now you should expect that, if you go there, your kid is going to end up on the Internet.

A number of people said, though, that there was some legal issue here, that the person who took the photos and posted them online did not have the right to post those photos without asking permission and without getting some clearance in some sense from the parent.

Emily:  Speaking of rights, we’re going to speak to Carolyn E. Wright who specializes in law around photographs. Welcome, Carolyn.

Carolyn:  Thank you very much. I’m happy to be here.

Emily:  Thank you. We’re dealing with the issue of who can say what about posting photographs of their kid at, say, a birthday party or something on Facebook. But let’s broaden this out. Can you give us just a general take on what right people have to post photographs of you without your permission and what right you have to say, “You can’t post that. Take it down.”

Carolyn:  Each state’s law on these issues is a little bit different, but they’re mostly the same. If you’re out on the street or in a publically-accessible area, anybody can take your photograph. It doesn’t matter what you’re doing. Except if you have an expectation of privacy.

If I were taking a photograph of a guy as he was standing there at the urinal, he would have an expectation of privacy. That would be a violation of his rights and he could sue me for that.

Farhad:  So it’s any place where you have an expectation of privacy. So my bedroom, dressing room, and things like that.

Carolyn:  Exactly. And if you’re in your home and the blinds are open and somebody can photograph you from the street, then you don’t have an expectation of privacy. But if the blinds are drawn, then you do have an expectation of privacy. In fact, the home is the most sacred place that we think about as having an expectation of privacy.

Emily:  Wait a minute. If I’m in my bedroom reading and I have the shades up, someone could come and take a telephoto lens and photograph me, and that’s okay?

Carolyn:  If you are viewable to the people out in the area, like the building across from you or something like that, yes, absolutely, they would be able to take your picture.

Farhad: Even though you have an expectation of privacy in your own room?

Carolyn:  Well, you don’t have an expectation of privacy if you’re visible to others easily. That’s really what happens in a court. They ask the jury, “If you were there, would you have an expectation of privacy?”

Emily:  I see. How has this all changed with the advent of Facebook? It used to be one thing. In this case, we’ve been talking about children’s birthday parties, but any social event, if you got together and someone brought out a camera, you would expect the entire world could then see pictures of this posted online. But that’s changed.

Have expectations changed? Has the law changed? Does it matter where these photographs that are legal to take appear?

Carolyn:  The violation of your rights of privacy are at the moment the photograph is taken – like the guy at the urinal, if I took his photograph, I would violate his right just at that moment. I wouldn’t have to have published that image anyplace else for him to have a claim against me for violating his right of privacy.

However, if you did not violate the person’s right of privacy when you took the image, then using the image you look as to whether it’s an editorial use or a commercial use. Essentially, commercial use you think about advertising, endorsements, and things like that. Editorial uses are just sharing the images with your friends, like on Facebook, where you don’t have to get the permission of the person in the photograph to share that image.

Farhad:  So in the case of our letter writer who was posting it on Facebook or on her blog – it sounded like it was a personal blog – that would be okay.

Carolyn:  It is. That would be considered an editorial use. You’re just reporting on what’s happened in life. Emily, you were asking about whether the law has changed. The law has not changed with the advent of 9/11 and terrorism and Facebook, social media and things like that. However, people’s expectations may have changed.

So when you talk to a jury, would somebody say they have an expectation of privacy? That might change, because our privacy rights have eroded a little bit because people share this kind of information all the time.

Farhad:  That’s what the pertinent question is here for our situation. At a birthday party in a private home where there are maybe two dozen people there, including children, is that a place where you should expect privacy or because you see everyone has a camera, should you not expect privacy?

Carolyn: In my opinion, and what the cases have said, is no, you wouldn’t have any expectation of privacy. People are taking photographs just like at a wedding or any sort of a party event. You don’t have an expectation of privacy. Even though you might be in a private home, that doesn’t make a difference.

Farhad:  There’s nothing different in the law here for minors. There’s no special scenario that because this is a child, we should treat it differently or they have special rights not to be photographed?

Carolyn:  That’s exactly right. There’s an example that would be very illustrative here. A few years ago there was a guy who was a self-professed pedophile. He was taking photographs of children in public. Now, they’re fully-clothed. He was posting these images online and he was using these images to give credibility to pedophilia as a way of life.

Now, that’s exactly alarming. We would love to shut him down. However, his first amendment rights allow him to that. Just because they’re children doesn’t make a difference. The fact that they were out in public, they could be photographed and the way that the images were being used did not violate any sex crimes, then what he was doing was not illegal.

Emily:  So, morally repugnant is not necessarily illegal.

Carolyn: Correct.

Emily: We’ve been talking to Carolyn E. Wright who is an attorney who specializes in photography law. Thank you so much for this very illuminating conversation with us to help us clarify out thinking and what people’s rights are as far as being able to say, “Get my kid’s picture off your Facebook page,” which apparently is none.

Carolyn:  That’s exactly right.

Farhad:  Thanks a lot.

Emily:  You’re welcome.

Farhad:  So it seems that, in this case, it’s all an etiquette question and not a legal question. You don’t have any right to not have your photograph on the Internet, but you may be able to appeal to someone else’s sense of decency.

Emily:  You probably don’t want all your social relations to end up being, “Well, I’ll see you in court over that.” The people who object have to understand they don’t have any legal ground, but the people taking the photo should be sensitive to their friend’s sensibilities.

Farhad:  Send us your questions about shifting etiquette in the online age. Our address is digitalmanners@slate.com

Emily:  You can also join our Facebook page where we carry on the conversation throughout the week.  Go to Facebook.com/digitalmanners.

Farhad:  And we’ll talk to you next time on Manners for the Digital Age.

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