Last week, an 18-year-old Australian named Amy Sharp made international news when, after fleeing jail, she hopped into the comments of a local television station’s Facebook post about her escape to request they use a flattering photo of her—instead of her mugshot.
It’s easy to make light of a teenage fugitive’s digital exploits. But for those whose photos have been posted to websites like She Has Had It or People of Walmart, which mock unattractive pictures of strangers, the matter is a little more serious. Most of us have rolled out of bed and headed to the store in our pajamas, certain nobody would notice our less-than-ideal appearance. But what if someone did notice—then surreptitiously documented it with a cameraphone and shared the image with an audience of thousands?
If this ever happened to you, would you have any legal recourse? As a professor with expertise in internet law, I believe it all depends on your right of publicity, which limits the commercial use of one’s name, image, likeness and/or identity. The answer would likely be yes—but let’s look at a few cases to understand why.
A digital Shaq attack
In April 2014, sports commentator and former star athlete Shaquille O’Neal posted a Photoshopped image on his Twitter and Instagram accounts of himself side-by-side with Jahmel Binion. He captioned the picture, “SMILE.”
Binion, who was 23 years old at the time, suffers from ectodermal dysplasia (a condition also affecting Gaten Matarazzo, the actor playing Dustin on Stranger Things), which has left him with a disfigured appearance. In the photo, O’Neal contorted his facial features in an attempt to make a face similar to Binion’s.
The social media post received more than 17,000 “likes” and more than 700 comments (many of which were rude or offensive) on Twitter alone. Based on this activity, Binion sued O’Neal in a Florida federal court for, among other things, something called “appropriation,” which is essentially a right of publicity claim. The basic idea is that you can stop others from using your name, likeness, or identity for commercial gain.
The Florida court recently denied O’Neal’s motion to dismiss the claim, which means that Binion can continue with the case against O’Neal—though, at least according to a recent Tweet from O’Neal, it appears the two are on friendly terms.
Right of publicity in the social media universe
But the right of publicity doesn’t easily translate online. Because this right is rooted in state law, the parameters of the right vary significantly by jurisdiction. Roughly 30 states recognize claims based on the right of publicity through statute, common law or both. Most of these states extend the right of publicity to all people, not just celebrities or other famous individuals.
Though there is a lack of uniformity regarding its application, the most common requirements include a person using another’s name, identity, likeness or persona without consent in a way that causes harm—and receiving some kind of benefit or advantage based on that use. (Whether that applies to Beyoncé’s supposedly unflattering Super bowl imagery is up for debate.)
In the social media universe, I don’t believe it would be hard to show that a person is harmed when their image is used without permission, especially when cruel or offensive language is used. The question of the benefit or advantage obtained, however, will be more difficult to prove and has historically thwarted Internet suits of this kind.
What’s in it for the person (or organization) who posts your photo?
With the rapid rise in ubiquity of social media platforms, attorneys have grappled with applying traditional right of publicity law to new frontiers like Facebook, Instagram, Pinterest, Tumblr, and Twitter. In one recent case, Fraley v. Facebook, Inc., Facebook found itself in a right of publicity lawsuit based on its use of the Sponsored Stories advertising feature.
These are paid ads featuring the names and pictures of Facebook users based on their past Facebook activities and “likes.” Though the suit against Facebook ultimately settled, the right of publicity claims survived—the plaintiffs could show a clear connection between the value of their unauthorized endorsements to their Facebook friends and the benefit Facebook gained by using their photos.
While the commercial advantage may be clear in a case like Fraley—when Facebook received money for their ads using people’s pictures and likes—the Binion scenario is more challenging. O’Neal’s post, though widely shared and liked, did not provide a direct commercial benefit to him. Most states require that the defendant received some commercial or monetary benefit.
Some legal authorities, however, state that the right of publicity is not limited to purely commercial benefits. The victim’s right of publicity claim may survive even if the offending party does not receive money or other benefit.
In fact, in Binion, the court suggested that the fact that O’Neal’s post generated significant social media interest and was widely viewed and shared could meet the benefit standard. All those “likes” and “favorites” are a currency all their own. Social media users, therefore, could be exposed to legal liability for posting pictures of strangers under such a theory.
With no uniform body of law to reference, social media users remain susceptible to right of publicity claims. Individuals and companies who use social media to connect with others must be mindful of such uncharted territory and create social media strategies that mitigate their risk of liability. Otherwise, posting photos—particularly unflattering ones—of strangers will continue to expose users to such risks.
