Having an embarrassing photo posted on FaceBook is bound to happen to everyone. In fact, it is such a common occurrence that FaceBook even created a feature to allow the subject to “untag” his/herself from the photo in order to keep it off of his/her own Facebook feed. But what happens when someone is habitually posting embarrassing photos of you on Facebook? An 18-year-old Austrian woman is testing how privacy laws apply in this age of social media by suing the users that she claims have posted more than 500 embarrassing photos of her on Facebook, without her consent. The culprits – her parents. The images – childhood photos.
The woman is claiming that the photos are “violating her rights to a personal life” because they depict stages of her life including getting her diaper changed as a baby, potty training as a toddler, or running around naked as a young child. Despite having asked her parents to take down the photos and cease from future posts, her parents have taken that position that because they took the photographs they have the right to reveal them to the world.
Although this case will be decided under Austrian law, it is likely that similar suits will be subsequently filed in the States. Most states have laws which afford individuals legal privacy rights and the ability to take independent action if those rights are violated. These laws typically include the “public disclosure of private facts” as a privacy violation provided that the subject had a reasonable expectation of privacy regarding those facts.
That is where this case, and future cases, could get complicated. The question raised is whether someone has a reasonable expectation of privacy when they consent to have an embarrassing photograph taken knowing that they picture may very well end up on social media. The more complicated question will also have to be answered as it applies to minors – if a child under the age of consent is photographed by their parents, those legally allowed to consent on the child’s behalf, can the child argue later argue that she or he had a reasonable expectation of privacy or revoke consent? Simply stated, the courts will soon face the task of determining where the line exists between private family or childhood moments and the present social media culture of publically sharing every aspect of our lives.
Until these questions are answered, this case should serve as a cautionary tale for parents, siblings, or friends that like to post embarrassing photos of others. If the subject asks you to remove the photograph, consider abiding by such request. If not, you could find yourself facing the next social media privacy lawsuit.