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.
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Paul Brennan's practice includes on-line law and he is the author of Easy IP - How to use the law to protect your money-making ideas. A book and DVD.
