Many people on finding that their image has been used to promote weight loss may feel a little flattered unless of course it is the “Before” rather than the “After” shot, but an attractive fitness trainer whose underwear shots were taken without her permission and used to promote slimming products on Facebook in another country was understandably livid.
Will Facebook rush into action? Well, it all depends.
Facebook will act if you can prove that your intellectual property rights (“IPR”) have been infringed. For instance, the person taking a photograph is usually the copyright owner. By uploading the photograph it has been copied. Facebook should act quickly to remove the infringing photograph. This is because generally, internationally, a company which hosts a site can be liable if they do not act to remove infringing material within 48 hours of being informed of the infringement. But, unless it was a selfie, or taken by your employee*, or you have a licence or assignment of the IPR by the person who took the picture, you are not the copyright owner and do not have the right to enforce copyright in the photograph.
Have her image rights been infringed? This is an argument used by celebrities whose images are used to promote a product without their permission. Here, Facebook should act as she is in the business of a trainer and her image is part of the goodwill of her business.
Has she been defamed? Imputations of being fat, taking drugs, or being willing to strip off for money are insults that most people can laugh off, unless it is about them. But America has comparatively lax laws on defamation as freedom of speech is a fundamental right of every US citizen, they can say what they like about anybody. Hence, the popularity of guns. Therefore, Facebook may not be eager to act but can be forced to do so by courts in the countries where the defamatory statement was made or received. Lawyers in Australia, particularly judges, take abusive imputations very seriously, especially about being bald and/or deaf.
Has her privacy been breached? Displaying an image of someone even if it is in their underwear is not a breach of their privacy unless there is a good reason for it to be confidential.
There are probably a number of national trading standards organisations to which she could protest, but they may not act quickly, or at all. Therefore, it is advisable to get your arguments in order before you approach Facebook demanding that they take them down.
© Paul Brennan 2013. All rights reserved.
* Underwear shots taken by your employee are not always deemed your copyright and in any event, should only be used when combined with a credible explanation to your spouse.
Disclaimer : All references in this article to underwear, being overweight, selfies, employees taking inappropriate photographs, disrobing, drug taking, inappropriate use of firearms, ineffective lawmakers, trading standard organisations being any slower than any other government body are pure inventions to try and keep the readers’ attention and nothing to do with the news report which sparked this article. Any resemblance to real persons or events, living or dead, fat or thin is purely coincidental.
All rights reserved.
Disclaimer: The content of this Legal Brief is to give you legal basics and in some instances, included unashamedly to try and make you laugh. In law, it is sometimes difficult to work out what is serious and what is just for fun. Therefore, if you plan to do anything legal, rely on your own lawyer's advice orinstruct me to look at the particular facts of your case. Not only will I deny responsibility for the legal content but also for some of the jokes.
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