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Wikilegal/Uploading Individuals' Photographs on Wikimedia Commons

< Wikilegal

Before posting a photograph to Commons, users should consider whether the photograph violates privacy protections. This post analyzes privacy causes of actions individuals have against those who post photographs of them on WMF projects. The list is not exhaustive, and is limited to U.S. causes of actions, specifically that of California. It should be noted that many privacy disputes can also involve foreign law and jurisdictions; uploading a photograph in the United States does not necessarily shield one from foreign causes of actions, and standards by country can vary considerably. For example, Commons requires compliance with both U.S. and foreign law.[1] While not addressed here, users should also ensure that uploaded content does not violate other laws like copyright protections.

California protects a right to privacy under four common law torts or so-called wrongs: (1) intrusion; (2) appropriation of name or likeness; (3) false light, and (4) unreasonable public disclosure given to another’s private life. California-specific state law protections of privacy include (5) right of publicity[2] and (6) California’s constitutional right to privacy.[3]

Intrusion

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The action for intrusion has two elements: (a) “intrusion into a private place, conversation, or matter,” (b) “in a manner highly offensive to a reasonable person.” This tort includes both physical trespass as well as sensory intrusion, such as through eavesdropping, wiretapping, or photography.[4]

Users should look at the context of the photograph to ensure the subject did not have a reasonable expectation of privacy. In determining whether there was an intrusion into a private place, courts ask first whether there was a reasonable expectation of privacy for the subject of the photograph. If the subject is in a public place, there usually is no reasonable expectation of privacy.[5]

To determine whether intrusion occurred in a manner highly offensive to the reasonable person, courts consider factors such as the extent of the intrusion and the photographer’s motive. For example, California courts do not find liability for inadvertent intrusion because the motive requirement is not established.[6] California has recognized that photography of a public figure is acceptable even if the subject is on private property, as long as the subject is in full public view.[7]

Appropriation of Name or Likeness

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For a valid appropriation claim, there needs to be proof of (a) the defendant’s use of the plaintiff’s identity; (b) the appropriation of the plaintiff’s name and likeness to the defendant's advantage; (c) lack of consent, and (d) resulting injury.[8]

Users wanting to post photographs on Commons should consider whether the subject is a public figure. Newsworthy public figures are generally excluded from recovering under this claim, if there is a legitimate public interest to showing the photograph.

Generally speaking, there is no appropriation where the plaintiff’s name or likeness is incidental, or adopted for a purpose other than “taking advantage of his reputation, prestige, or other value associated with him.”[9] To determine whether the use is incidental, factors such as the following are considered: a “unique quality or value that would result in commercial profit” to the user; whether the subject contributes something of significance to the photograph; the relationship between the subject and the presence of the subject in the photograph, and the overall significance of the photograph.[10] The threshold for incidental use is surprisingly low. For example, the use of Chuck Yeager's name in an advertisement for Cingular Wireless was held to be incidental in the following press release: “Nearly 60 years ago, the legendary test pilot Chuck Yeager broke the sound barrier and achieved Mach 1. Today, Cingular is breaking another kind of barrier with our MACH 1 and MACH 2 mobile command centers, which will enable us to respond rapidly to hurricanes and minimize their impact on our customers.”[11]

False Light

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To prevail on a false light claim, the plaintiff must demonstrate that (a) the defendant disclosed false information about the plaintiff to one or more persons; (b) one or more persons understood the information as stating or implying something highly offensive about the plaintiff; (c) the defendant acted with malice; and (d) the plaintiff was damaged by the disclosure.

Before posting photographs on Commons, users should ensure that the context (through description, lack of description, and so on) does not give any false impressions of the subject. False light plaintiffs bear a heavy burden of proof. Usually photographs taken in a public place which are otherwise a “fair and accurate depiction[] of the person and scene” will likely not give rise to a false light claim.[12] A false light claim is often difficult to establish as the plaintiff would need to demonstrate malice, and a reckless disregard of the truth.[13]

Public Disclosure

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A person bringing a claim of publication of private facts must prove that (a) there was disclosure (b) of private facts that (c) would be offensive to a reasonable person and (d) the disclosed information is not newsworthy.[14] A Commons user may be held liable under this tort regardless of whether he or she was the photographer.

A court might find that posting photographs on Commons counts as public disclosure. Public disclosure takes place when a “matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.”[15] Before posting, Commons users should consider whether the photograph in question reveals non-newsworthy private facts.

Right of Publicity

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California law prohibits “knowingly us[ing] another’s name, voice, signature, photograph, or likeness, in any manner . . . without such person’s prior consent.”[16] The plaintiff must prove all of the elements of appropriation as well as a knowing use directly connected to a commercial purpose.[17]

There are a number of exceptions that may be applicable to Commons users. First, the subject of the photograph must be identifiable, meaning that many crowd photos and others may be acceptable under this tort as incidental use.[18] Incidental presence in photographs is an exception here too, similar to the appropriation tort. Similar to other privacy torts, there is also a newsworthiness exception for public figures.[19]

Constitutional Right to Privacy

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The California Constitution creates a legal and enforceable right to privacy.[20] A plaintiff must demonstrate (a) a legally protected privacy interest; (b) a reasonable expectation of privacy, and (c) a serious invasion of privacy by another person’s conduct.[21]

WMF Community Policies

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It is important to note that WMF community policies for uploading images may have stricter “moral rights” requirements than California law, and that such community policies may differ depending on the WMF project.

For example, English Wikipedia considers “parts of a building where the general public is not allowed” as a private place requiring consent.[22] For public figures, however, California law might arguably allow photography if the subject is in public view, such as near the window inside a private residence.[23] In addition, Wikipedia prohibits uploading images that “are unfairly obtained” or “unfairly demean or ridicule” the subject.[24] This may also be a higher standard than what a California court would view as a privacy violation. The Commons community policy also honors similar moral rights and usually honors deletion requests with good reasons, including conflicts or other interoperability issues with foreign law.[25] The WMF Board has also passed a Resolution regarding biographies of living people, urging community members to adhere to principles of verifiability and neutrality, as well as taking human dignity and respect into account when adding or removing content.[26]

Conclusion

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While privacy laws related to uploading photographs online are numerous and complex, many risks can be reduced by following a few common-sense approaches, such as getting the subject’s consent whenever possible, and avoiding posting photographs that are likely to be harmful or offensive, or obtained in an unauthorized manner.


References

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  1. ↑ Terms of Use, Wikimedia Commons, available at https://meta.wikimedia.org/wiki/Terms_of_use?rdfrom=commons:Commons:Terms_of_use (“Please be aware that you are legally responsible for all of your contributions, edits, and re-use of Wikimedia content under the laws of the United States of America and other applicable laws (which may include the laws where you live or where you view or edit content).”).
  2. ↑ Cal. Civ. Code § 3344(a) (1995), available at http://codes.lp.findlaw.com/cacode/CIV/5/d4/1/2/2/3/s3344.
  3. ↑ Cal. Const. art. 1, § 1, available at http://www.leginfo.ca.gov/.const/.article_1.
  4. ↑ Shulman v. Group W Prods., 18 Cal.4th 200, 230-231 (1998), available at http://scholar.google.com/scholar_case?case=699835474797912872&hl=en&as_sdt=6&as_vis=1&oi=scholarr.
  5. ↑ Restatement (Second) of Torts § 652B cmt. c (1977).
  6. ↑ Marich v. MGM/UA Telecommunications, Inc., 113 Cal. App. 4th 415 (2003).
  7. ↑ California Intrusion Law, Digital Media Law Project, available at http://www.dmlp.org/legal-guide/california/california-intrusion-law.
  8. ↑ Eastwood v. Superior Court, 149 Cal. App. 3d 409, 417 (1983).
  9. ↑ Yeager v. Cingular Wireless LLC, 673 F. Supp. 2d 1089, 1100 (E.D. Cal. 2009) (internal quotation marks omitted).
  10. ↑ Id.
  11. ↑ Id.
  12. ↑ Aisenson v. Amer. Broadcasting Co., 269 Cal. App. 3d, 146, 162 (Cal. Ct. App. 1990), available at http://www.leagle.com/decision/1990366220CalApp3d146_1354.xml/AISENSON%20v.%20AMERICAN%20BROADCASTING%20CO.
  13. ↑ Time, Inc. v. Hill, 385 U.S. 374, 387 (1967).
  14. ↑ Shulman, 18 Cal.4th at 214.
  15. ↑ Restatement (Second) of Torts § 652D cmt. a (1977).
  16. ↑ Cal. Civ. Code § 3344(a) (1995), available at http://codes.lp.findlaw.com/cacode/CIV/5/d4/1/2/2/3/s3344.
  17. ↑ Downing v. Abercrombie & Fitch, 265 F.3d 994, 1001 (9th Cir. 2001).
  18. ↑ Cal. Civ. Code § 3344(b) (1995).
  19. ↑ Id. § 3344(d).
  20. ↑ Cal. Const. art. 1, § 1 states “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”
  21. ↑ Four Navy Seals, 413 F. Supp. 2d at 1143.
  22. ↑ Wikipedia: Image Use Policy, Wikipedia, available at https://en.wikipedia.org/wiki/Wikipedia:Image_use_policy#Privacy_rights, at “What are public and private places?”.
  23. ↑ See supra note 7.
  24. ↑ Id. at “Moral Issues”.
  25. ↑ Commons: Photographs of Identifiable People, Wikimedia Commons, available at https://commons.wikimedia.org/wiki/Commons:Photographs_of_identifiable_people (“administrators are normally sympathetic to removal requests if good reasons can be given.”).
  26. ↑ Resolution: Media about Living People, Wikimedia Foundation, available at http://www.wikimediafoundation.org/wiki/Resolution:Media_about_living_people.
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