Social Networking – An open Book?

A report released last week by the University of Cambridge revealed that many Social Networking sites such as Facebook, BeBo and MySpace maintain copies of photographs which are posted by their users even over 30 days after they are deleted, raising concerns over user privacy.

The research, which looked at 16 of the most popular websites hosting user photos, found that Social Networking Sites take a “lazy approach to user privacy, doing what’s simpler rather than what’s correct”.

The issue here is that many of the websites covered by this research will use third-party servers to store photos, probably because of the sheer size of the files in question. Many users may be worried that, when a request is made to take down a less than complimentary photo or any other content which puts them in a negative light, it may still remain on the website even after it’s been deleted.

There are clear legal issues here, the most important of which being copyright and privacy. A photograph is owned, for copyright purposes, by whoever took the photograph in the first place. The fact that Photographer owns the copyright means that they can control how it’s used and restrain anyone else from making copies of it. However, sites such as Facebook and Bebo will obviously need to bear in mind any complaints made by third parties who are in the Photographs. Privacy and “Image Rights” are becoming much more widely-used causes in the Courts, but unless the photographs in question are particularly invasive (i.e. similar to what would appear in tabloids), then it’s hard to see how a claim for damages based on privacy or image rights would stack up if considered by a Judge, mainly because image rights in particular are created via the interrelation of a lot of different legal principles and can be hard to rely upon in some cases unless you are a public figure whose image is licensed to third parties so that you can make money from it, as was the case when Eddie Irvine sued Talksport a few years ago.

The sites will usually fall back on their terms of use, which in Facebook’s case, have come under heavy criticism recently. In February,the site was forced into a U-Turn over controversial plans to change its terms of service to include wording which would allow them to retain some ownership over any content posted onto the site so that it could be used by advertisers or other third parties, which would include photographs. However, the fact is that the terms of use of many of the websites covered by the survey will contain provisions which grant the site a license to us whatever you upload and share it with at least other users. Anyone who would have a problem with this should consider not signing up or altering their privacy settings.

That said, if a request is made for a photo or other material to be deleted or taken down, then it’s up to the websites to act quickly. The 2002 Electronic Commerce Directive Regulations provide that Social Networking Websites (as “service providers”) will not normally be liable for damages as a result of any content which they host unless they fail, when notified by a third party, to remove any unlawful content (which would include defamatory remarks, copied music & movie files and invasive photographs) as quickly as possible. Facebook and the other social networking sites appear to be failing to do so and if this is the case, then it’s only a matter of time before one of them ends up having to defend a claim which, if given enough publicity, could seriously dent their own reputation amongst their users and see many deleting their accounts for fear of what may show up on the site without their knowledge.

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