Forgot your password?
typodupeerror
Facebook Privacy Your Rights Online

Court Rules It's Ok To Tag Pics On Facebook Without Permission 201

Posted by samzenpus
from the random-acts-of-tagging dept.
neoflexycurrent writes "A federal court has ruled that photos of a woman on Facebook showing her drinking were properly used as evidence in a child custody case. She had argued she was identified without permission. But the court rejected that argument. In reaching that decision, the court made the interesting observation 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.'"
This discussion has been archived. No new comments can be posted.

Court Rules It's Ok To Tag Pics On Facebook Without Permission

Comments Filter:
  • tagging is fine (Score:2, Insightful)

    by devxo (1963088)
    Why wouldn't tagging be within law? Tagging a photo is similar to someone asking "who is that person" and the photographer telling him. Sure, Facebook gets extra data, but then you should tell your friends not to tag you in photos.
    • Re:tagging is fine (Score:4, Insightful)

      by andrea.sartori (1603543) on Sunday March 13, 2011 @12:37PM (#35472034) Journal

      Tagging a photo is similar to someone asking "who is that person" and the photographer telling him.

      Exactly. Besides, she used the wrong defence: she should have said she's wasn't drinking that much.

      • Of course one should consider that (1) photographic evidence of her drinking is online, and (2) the best she could do was "no fair I didn't say tags were allowed" for a defense, so most likely she's a mental midget who shouldn't be trusted to raise children. Lots of people can give birth, very few of those should.
        • Yes, this "identified without permission" thing sounded more like an admission of guilt than an actual defence.
        • Re:tagging is fine (Score:5, Insightful)

          by Moryath (553296) on Sunday March 13, 2011 @01:07PM (#35472328)

          The phrase you are looking for is "easy cases make bad law [google.com].

          For those who are unclear: the WORST law, in terms of setting precedents to be relied on later, comes from cases in which a defendant is "obviously guilty of something" or just plain unsympathetic. The end result is a jury ruling on the emotional bounds of what they are presented, rather than on facts in the case, or in the appellate side, a bunch of judges making "fuck it we can see they are guilty why are you bothering us with this crap" rulings.

          Ironically, the counterargument - hard cases make bad law [google.com] - is also valid. Hard cases require very case-specific rulings and legal hair-splitting in order to arrive at the verdict or appellate review result, but then inevitably someone comes along and tries to apply them to completely different situations as precedent.

          • by Kjella (173770)

            I don't quite see the connection between a court case being having broad or narrow implications and how sympathetic or unsympathetic the defendant is.

            Take for example the Betamax case, we had a very sympathetic producer of VCRs compared to some of the companies that have tried hiding under that shield, like for example Napster, Grokster, Limewire etc.

            DVD-Jon was also a very sympathetic case, they couldn't find any evidence he was involved in any form of piracy, he just wanted to watch his own discs. That ca

          • Let's stay right within the law -

            Watch what will happen when a judge gets tagged after going to a party out of town!

            "Oh no! That's facilitating the embarassment of a Respected Member of the Governmental Aparatus! Violation of Security!"

        • Of course one should consider that . . . the best she could do was "no fair I didn't say tags were allowed" for a defense, so most likely she's a mental midget who shouldn't be trusted to raise children.

          Unless she's representing herself, wouldn't this be more her lawyer's fault?

          • It wasn't the lawyer's public drinking that was an issue.

            Yes, posting pics of yourself "getting hammered" makes you a "public drunk" in pretty much everyone's mind, and employers and clients do put your name in a search engine of they have any sense at all...
            • It wasn't the lawyer's public drinking that was an issue.

              I'm pretty sure you knew what I meant about her lawyer and her choice of defense . . .

    • Re:tagging is fine (Score:5, Informative)

      by realityimpaired (1668397) on Sunday March 13, 2011 @12:37PM (#35472046)

      Well, see, in countries where there's decent privacy laws, it's illegal to take a picture of somebody where that person is the subject of the photo, and then to publish that photo without their permission. You can still be in the background of a picture, as "noise" as it were, but if you're the actual *subject* of the picture, then they need permission to publish. (so those tourist photos you took of the Eiffel tower are fine: those people wandering around in the square below it are not the subject of the picture)

      Such laws usually have to do with newspapers and magazines, but they could be extended to apply to people posting pictures of their friends on the 'net, but I don't think that kind of use was really in the minds of the lawmakers when they drafted this kind of law.

      • Such laws usually have to do with newspapers and magazines, but they could be extended to apply to people posting pictures of their friends on the 'net

        Not wrong in principle, but impossible to enforce.

      • by Lehk228 (705449)
        and that is why it is better to live in a country with actual freedom of speech instead of "freedom of speech except when we don't like it"

        in the US those same rules apply when using a photo for commercial endorsement, but freedom of speech and of the press remains protected.
        • Oh, please, in the US copyright is used all the time to prevent unwanted speech all the time. Even Slashdot itself suffered from such censorship.

          • And such people likely don't agree with that, either.

            • I was replying to the "in the US (...) freedom of speech and of the press remains protected." statement, not to his opinion about it.

          • by ScentCone (795499)

            Oh, please, in the US copyright is used all the time to prevent unwanted speech all the time.

            When you speak/write/compose/etc, you own the copyrights to your words. Unless of course you're just regurgitating what someone else said, and not meeting the actual legal standards of fair use in order to be safe from infringment claims. Or, of course, unless you're writing/speaking as part of a job/contract in which you've agreed that the copyrights on what you're communicating are owned by the person who's paying you. But in general, "unwanted" speech can't be controlled by some third party copyright ho

            • Unless of course you're just regurgitating what someone else said, and not meeting the actual legal standards of fair use in order to be safe from infringement claims.

              Yes, that was what happened in the Slashdot case: the poster included a full copy of a text owned by the Scientology cult.

              But my point wasn't that it was an abuse, it's that there's no real difference in principle between the two; why is prohibiting the usage of someone's face an attack on freedom of speech, but not of one of their works?

          • by t2t10 (1909766)

            Oh, please, in the US copyright is used all the time to prevent unwanted speech all the time. Even Slashdot itself suffered from such censorship.

            The threat of copyright infringement lawsuits is used frequently, but if you actually saw things through in court, you'd likely prevail on free speech grounds, provided your use of any copyrighted material is fair.

        • Freedom of speech and the press is as well protected in europe. I don't understand your point.

      • Well, see, in countries where there's decent privacy laws, it's illegal to take a picture of somebody where that person is the subject of the photo, and then to publish that photo without their permission.

        Bullshit. Newspapers do it all the time, and so do the police. Do you think they get permission from suspects every time the put up wanted posters?

      • by BatGnat (1568391)

        Actually, most countries with decent privacy law state that when in public, you have no privacy! with certain exceptions (for example:You cant take a picture, use it in an advertisement without the persons permission, even if they are "background noise".

        What fictional countries are you talking about? If those laws actually existed then the, paparazzi would not.

        • What fictional countries are you talking about? If those laws actually existed then the, paparazzi would not.

          Those laws do exist. The Paparazzi are not the ones who are publishing the fotos, it is the newspapers and magazines. So the magazine gets fined ... but they don't care if they have to pay $150k for a foto as fine and another $200k to the depicted person as compensation.

          Sitting with friends in a bar is not in public. In public means you are participating in an event of public interest, like a footbal

      • by t2t10 (1909766)

        Well, see, in countries where there's decent privacy laws,it's illegal to take a picture of somebody where that person is the subject of the photo, and then to publish that photo without their permission.

        You mean like communist Russia? Saudi Arabia?

        What people can't and shouldn't be able to do you is libel you with the photo (by creating the impression that you were doing something you weren't actually doing) or use you as a model for commercial gain. Both of those are civil matters, not criminal matters,

      • by codegen (103601)
        First of all, its not illegal to *take* the picture, except in a very few jurisdictions. Publishing the picture is a different story. But even then, only a few jurisdictions have taken the interpretation you suggest. They only rule it illegal if the photo is sold to a stock agency, or published directly in a for profit article. Facebook/youtube don't count.
    • by hashp (68887)
      Or Facebook should give you the option to stop being tagged. But that wouldn't be in their interest I guess. A lot of people tag irrelevant photos with all their friends name, just to get their attention. I have fought with my friends trying to tell them not to do that, some people just don't get it.
      • People who do facebook don't get to do me.
      • by DavidD_CA (750156)

        It does. One of the privacy settings controls who is allowed to tag you. Options include only yourself, friends, or specific groups of people you've created.

      • Or Facebook should give you the option to stop being tagged.

        But that wouldn't be in their interest I guess.

        A lot of people tag irrelevant photos with all their friends name, just to get their attention. I have fought with my friends trying to tell them not to do that, some people just don't get it.

        You can un-tag yourself and then no one will be able to tag you again. If you are tagged, you get an email notification (and a FB notification). It would be nice if they made it so that you could prevent people from tagging you as well.

        • by vux984 (928602)

          You can un-tag yourself and then no one will be able to tag you again.

          The only way it could capture that you weren't allowed to be re-tagged on that image is if the orginal tag remained, but had another attribute attached to it saying that the tagged individual had requested the tag be "hidden".

          Thus a search for tagged images of you made by joe-public would not return those "un-tagged" images.

          However, a search for tagged images of you made by someone with authority to ignore that "hidden" flag. (e.g. facebo

      • by BillX (307153)

        Worse, if you login from an unfamiliar place, Facebook often subjects you to a rather lengthy quiz to prove that you are the accountholder, asking you to identify friends in photos (based on other users' tags.) Get more than 2 or so 'wrong', and your account gets locked out.

    • by grumbel (592662)

      Tagging a few photos seems harmless enough, the problem is when you scale it up and add some technology into the mix.

      1) people tag photos
      2) search engine registers your face from those photos
      3) search engine goes tagging all photos on the Internet with you in it
      4) search engine goes data mining all those photos, cross linking it with other information and creates a large and detailed profile of the last few years of your life

      I am not saying that tagging should be illegal, but such harmless looking things c

  • by flyingkillerrobots (1865630) on Sunday March 13, 2011 @12:41PM (#35472092) Homepage
    I'm pretty sure Facebook's privacy settings even allow you to deny people the ability to tag you in posts. Problem solved. Idiot.
    • "Facebook" and "privacy" in the same sentence is technically an oxymoron.
    • by PPH (736903) on Sunday March 13, 2011 @12:51PM (#35472172)

      Actually, a Facebook non-user. If someone on Facebook takes a photo with me in it and 'links' it to my account, what you say may be true. But if I don't have a Facebook account and I am simply identified as PPH, how do I stop someone from searching through others Facebook accounts (which may be unsecured) for instances of PPH?

      Do I have to have a Facebook account to control this sort of third party tagging? Isn't that a form of blackmail?

      • by stinerman (812158)

        I don't believe there's a search mechanism for people who are tagged in pictures that don't link back to an account.

        So If I had a picture of you and I posted it and tagged it as being "PPH", I don't believe there is a way to just search for pictures of "PPH" using the interface. There might be, but it would be non-obvious.

        • by PPH (736903)

          There might be, but it would be non-obvious.

          The reason I asked is that: I have a friend who has no Facebook account. On top of that, he has the same name as a famous actor. So he thinks he is completely anonymous on the Interweb. But I went into a people search engine (it aggregates searches from numerous sources) and typed his name in. Sure enough, in the midst of a bunch of Hollywood paparazzi photos of his namesake, there's his ugly mug staring out at the world from some other person's Facebook account. So "non obvious" isn't going to buy you much

        • I don't believe there's a search mechanism for people who are tagged in pictures that don't link back to an account.

          So If I had a picture of you and I posted it and tagged it as being "PPH", I don't believe there is a way to just search for pictures of "PPH" using the interface. There might be, but it would be non-obvious.

          And even if there were such a mechanism -- and I believe you're right that there isn't -- one would have to be checking all the damn time to see if any new tags showed recently. At least if one has an account, one gets notified of new tags. For now. But that would sort of be coercion to get an account, as PPH wondered.

      • The tagging doesn't even matter. If someone tags you, you get a notice, and you can 'untag' yourself, and the person will not be able to re-tag you in the same photo. Apparently this person didn't think there was anything wrong with the tagged pictures until it came up in court.

        In your case, you are lucky that facebook has a really lousy search function. If there is a way to find such tags, I don't know it.
      • by vlueboy (1799360)

        We're safe. I've used someone else's account and found people tagging my name / aliases. When you're not a member of FB people skip your surname, misspell misspell your first, or misspell the whole thing and add anti-stalking noise.

        Facebook isn't yet sharing tag contents with google spiders. Besides, for avoiding tag paranoia alone, the "FB skeptic/outsider" state is better than joining, since once joined, people WILL find your name on google's first hit. For FB members, it takes a single click after autoco

    • by Lehk228 (705449)
      there are better options than that, you can block others from seeing when you are tagged, that way you can still see when people tag you
    • I'm actually pretty sure they don't. Idiot.
  • Just why would any court want less evidence? The judge & jury need information to base their decision upon. The more, the better. There are rules about what evidence can be excluded, but those are for only very good reasons. Not just because one party doesn't like it.

    In this case, tagging is like making a comment on a post. Free speech, subject to the limitations of libel. If she can show the tag is clearly wrong, then perhaps she can get it excluded as irrelevant. If not, tough. The jury will d

    • by jopsen (885607)

      The fundamental thing is that people are responsible for all their actions -- on record all the time -- except in clear situations where there is an expectation of privacy. Not in any bar.

      What ever you say, big brother...

      • by redelm (54142)
        Alright, I'll bite Little Brother:

        For which actions are people _NOT_ responsible? What acts in public deserve privacy? Crimes? Misdemenors? The real problem is prejudice, and I'd rather work on that.

        This could have happened (and probably did) in the days of 35mm cameras, it is just more likely with cellphone cameras and networks.

        • by Anonymous Coward on Sunday March 13, 2011 @03:17PM (#35473402)

          "The days of 35mm cameras" might seem as ancient as the dinosaurs to you, but concerns that new technologies and new businesses exploiting of those technologies are infringing on the right "to be let alone" have been raised for more than a century.

          Two future Supreme Court of the US Justices, named Warren and Brandeis, published a classic paper entitled "The Right to Privacy" in the Harvard Law Journal in 1890: http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html [mit.edu]. It is on of the most frequently cited law journal articles of all time and was the first to identify a Constitutional basis for a "right to privacy".

          Of course in their day, the new technology was photographs (which were slow back then, but enough faster than paintings that they could be taken surreptitiously) and newspapers were the new business exploiting those technologies but the principles and issues have not changed in a long, LONG time. If you want to read some discussion by a couple of really smart guys about what acts in public deserve privacy, read the paper.

          • Right on the money - I do not believe that the mere act of being in public (which is something, for all practical purposes, we must do), erases a right to privacy. When I walk out my front door, it is not an implicit invitation to every Tom, Dick, and Harry to turn my life into public spectacle if they so choose.

          • by redelm (54142)
            Sure, but notice the privacy exceptions near the bottom, 2 of 6 includes "quasi public bodies" voluntary associations which would include Facebook (and /. for that matter). Sign-up, and you are volunteering their scope of your life for public discussion. Not all will be pleasant.

            2 of 6 also includes the courts very explicity, which is the whole question here.

      • by Velex (120469)

        I was originally going to argue against redelm's point, but I think he's just arguing a point I might agree with but a bit clumsily and using too much macho rugged-individualist puritan hyperbole.

        The point is that it's great and all to have your own personal, public "wall" or news feed where you can chronicle your life and times for all to see. There needs to come a point where people realize that this is not the best idea.

        The problem isn't Facebook or which actions a person is responsible for or not,

    • The judge & jury need information to base their decision upon. The more, the better.

      Really? So ten lying witnesses are better than one truthful one?

    • by 517714 (762276)

      Just why would any court want less evidence? The judge & jury need information to base their decision upon. The more, the better.

      In general your statement is true, but the exceptions are important. Had the prosecution in the Nicole Simpson murder case restricted their case to the strongest evidence (motive, opportunity, the best of the blood evidence), O.J. Simpson would probably been convicted. When one "expert witness" claims the state's evidence is wrong, juries tend to take it with a grain of salt, but ten "expert witnesses" represent reasonable doubt.

  • by zerocool^ (112121) on Sunday March 13, 2011 @12:51PM (#35472174) Homepage Journal

    Funny story...

    Facebook is using their photo tagging system to build the world's best facial recognition software.

    Oh wait, that's not funny.

    • by hajus (990255)

      This could have practical ramifications for long term computer facial recognition. If those tagged pictures became public or were sold to AI researchers working in the field, it could provide a nice large set of data to teach and test against. This is assuming passport and license pictures from gov't are off limits.

    • by 517714 (762276)
      Unfortunately it cannot identify people with BAC below .08%
  • Since there's "nothing within the law" requiring their permission?

    • by ScentCone (795499)

      So no need for model release forms then? Since there's "nothing within the law" requiring their permission?

      Model releases (which are individual documents waving privacy, and are individually negotiated and often have very different terms from one to the next) do not apply to editorial and personal use, or when an image is used as art for art's sake. They apply when the image is used commercially (say, I take a photo of you, and then use it in a Viagra ad, or to illustrate a fund-raising press release for my non-profit, implying your endorsement of my cause, etc).

      The case in question has nothing to do with mo

  • by srussia (884021) on Sunday March 13, 2011 @01:06PM (#35472316)
    Her face could have been tagged "Lady Gaga", but if the photo itself was admitted as evidence, the person would still be identified.
  • by Geam (30459) on Sunday March 13, 2011 @01:21PM (#35472444) Journal
    Other than maybe not drinking if a psychologist says that alcohol has an adverse effect on the medication she takes and maybe asking the photographer not to take her picture while drinking, she could untag herself from unflattering pictures like these. There is already a setting to limit who can see tagged photos and also automation to have the system send an email and/or SMS when a photo is tagged. I frequently check the Privacy settings to make sure that I know how much information is being shared. I essentially have three groups: people I actually know (full access to what I share and access to see each other's posts on my wall), people I am 'Friends' with but do not have the heart to de-friend (basic information like photos I have shared and tagged myself, email address, status updates), and everyone else (name, default profile pic... and nothing else).

    To limit who can see tagged photos:
    Account > Privacy > Customize > Photos and videos I'm tagged in > Edit Settings > Who can see photos and videos I'm tagged in > Custom > Create a group of people you actually know or set it to 'Only Me'.

    To receive alerts about being tagged:
    Account > Account Settings > Notifications > Photos > 'Tags you in a photo'
  • as soon as you step out your front door, you are in public, and anyone can take a picture of you, without any need for permission

    in your private abode, or someone else's privater abode, the opposite is true

  • Court of Appeals of Kentucky.
    February 25, 2011.

  • It's a great thing I have no friends: they can't tag me in any photos if anyone even happened to take a photo of me in the first place!

    No friends == better privacy obviously!

  • tagging a picture is two separate acts: publishing the picture and publishing a statement (the tag). if I have published a legal picture of someone, I can tag it with anything non-libelous. not really anything new here, is there?

  • A few posts back "man arrested for linking to online videos."

  • They used the wrong defense. They should have argued that the original poster of the picture had no permission to use their picture for personal gain in the first place. Is it okay for me to scan in this month's Playboy and post the pictures as long as I tag them with the playmate's name?

    • by 517714 (762276)
      The picture of her was taken in a public place where she had no expectation of privacy. The personal gain argument fails since a private investigator could take a picture of her and be paid by the husband; the picture would be admissible in court. Even if she could establish that the poster had no right to publish the picture, that would not mean that the picture could not be used by the court since it was not taken illegally. Otherwise every defense team would publish the evidentiary pictures against th
  • how hard would it be for FB to seek the "tag-ee's" permission to use the tag? click here to approve your tag on this photo. click here to deny.. even better a setting that says - NO CAN TAG

    instead they just send a note that says "you've been tagged"

    fuck. that. shit.

    • by vlueboy (1799360)

      If you changed the default back in the friendster days you must approve the comments your friends wanted to post to your profiles.

      Online reviews for brick&mortar stores (ie jr.com) have settings to "prevent abuse" (though the real answer is to prevent the sales-hurting effect of overwhelming numbers of bad reviews.) The technology has been with us for almost a decade. The corporate machinery has always known where to turn it in their favor. Meet facebook.

      The increasing variety of exploitable posts/pictu

    • by Todd Knarr (15451)

      They already do. There's a privacy setting (under "Things Others Share") where you can control who can see photos and videos you're tagged in. Of course, this being Facebook, it defaults to "Everyone", but you can change it. I set mine to friends-only in anticipation of just this kind of thing. Or worse. Even if you never do anything embarrassing, there's nothing in Facebook that restricts people to only tagging photos that're really you. Someone who's taken a dislike to you can attach your name to any phot

  • this is seriously fucked up.

    The Facebook angle is about the LEAST thing wrong with the case. Dad Ran off to play softball for months (the links left off where dad's stuff was), mom took kid to Michigan (probably for family support). She did the MORALLY RIGHT thing of returning the child to the father on time, then going back to Michigan to file Divorce not in front of the kid. That was a mistake because HE then had custody in KY and she had to get the kid back. I can't believe the court tipped the scale

  • reminds me of recent news on public recordings and cops. they get different interpretations of the law.

    LoB

"No, no, I don't mind being called the smartest man in the world. I just wish it wasn't this one." -- Adrian Veidt/Ozymandias, WATCHMEN

Working...