Attorneys & Professionals
People today love sharing photographs of themselves and their whereabouts. And today’s technology makes it so easy. While there are numerous websites and apps that make this possible, among the most popular are Facebook, Twitter and Instagram. This trio ranks second, eighth, and twenty-fourth, respectively on Alexa.com’s rankings of top websites in the United States.
Of course, the combination of modern technology and people’s obsession with photo sharing has made it so easy for anyone to also share a private or embarrassing photo of someone else online. Even if the poster is not truly influential online, within hours – in particular on Facebook – a private or embarrassing photo can be seen by hundreds of eyeballs. And, the more racy the photo is, the more likely it is to spread.
In the event that a friend has innocently posted an embarrassing photo, the subject of the photo can typically ask them to remove it and little harm will have been done. On the other hand, if someone has posted a photo with the intent to harm someone else (such as a former significant other), such a photo will likely be more difficult to remove from the internet.
Mainstream websites such as the aforementioned Facebook, Twitter and Instagram have well-developed mechanisms for users to report and potentially have the websites remove these photos. And these companies are consistently attempting to update their policies and tools in order to best satisfy users and keep up with the new and evolving ways people are being harmed through social media. In fact, on Dec. 2, Twitter announced and began to roll out enhancements to its harassment reporting mechanisms.
In the case of Facebook, again, the removal of a photo may be as simple as asking a friend to remove it. Untagging one’s self does little to help a Facebook user for anything greater than a less-than-flattering photo, as it will remain on Facebook regardless. When a photo is posted by someone intending to publicly humiliate the subject of the photo, he or she should likely report the photo/notify Facebook.
Facebook users can anonymously report photos that conflict with Facebook’s Terms of Service or Statement of Rights and Responsibilities. For instance, Facebook prohibits posting content that “infringes or violates someone else’s rights or otherwise violates the law.” Like with anything else, there is no guarantee Facebook will remove a photo will be removed.
To actually report a photo via Facebook.com, the user should access the photo, hover his or her cursor over it and select: 1) Options; 2) Report Photo; and 3) “I think it shouldn’t be on Facebook.” On the mobile app, the person can press the ellipsis symbol (“…”), select “I don’t like this photo” and select “I think it shouldn’t be on Facebook.”
Alternatively, photo subjects can turn to Facebook’s “Report a Violation of the Facebook Terms” page (which also addresses dealing with others’ threats to share private photos). Meanwhile, if the photo is a selfie, the subject of the photo/photographer may have a copyright claim, which is discussed generally in this blog post. Moreover, Facebook also allows users to submit infringement complaints through the website.
To report an Instagram post from the computer, an Instagram user should similarly click the ellipsis icon below the post and select “Report Inappropriate” (specific bullying/harassing users can also be reported). Similarly, a mobile app user can tap the ellipsis icon, select “Report Inappropriate” and then choose from a list of options why they are reporting the particular post.
Again, Instagram will have the ultimate say in terms of whether a photo will be removed. However, if an image clearly violates Instagram’s Guidelines or Terms, it is likely that Instagram will comply. Instagram also has its own reporting mechanisms and policies regarding potential copyright infringement.
Similar to other websites, Twitter users’ best bet, to the extent possible, is to report and/or to persuade Twitter to remove a photo that violates its Terms. Twitter allows subjects of abusive or harassing behavior (and their attorneys, parents, etc.) to report information such as the posting of a private photograph. This includes both photos taken of the person or selfies, the latter category again invoking potential copyright issues (Twitter also has an online copyright violation form).
Like with Instagram (and the Facebook mobile app), a Twitter user can click or tap an ellipsis icon and then select “Block or report.” This involves potentially reporting an “abusive” image or indicating that the other Twitter user is being harassing (such as by posting private information).
In extreme circumstances (or if the above methods are unsuccessful), it may be necessary to involve legal counsel. In most cases, the subject of the private or embarrassing photo will personally know the poster of the photo. In this event, the subject’s attorney can potentially issue a cease and desist letter. Alternatively, an attorney can contact the entity (i.e. Facebook, Twitter or Instagram) and make a case for why the content, in light of a terms violation, should be removed. And in some extreme situations (such as dealing with private nude photos), it may be necessary to take more serious actions, such as pursuing copyright takedowns or even – when possible – criminal charges.
Many states have begun criminalizing revenge porn, including California, which passed a new law in October 2013. On December 1, 2014, a Los Angeles man became the first person convicted under this law after he posted a topless photo of his former girlfriend to her employer’s Facebook page. After a jury found him guilty for violating this statute and a restraining order, he was sentenced to a year in jail and three years probation.